Williams & Ors v Spautz

[1991] HCATrans 316

IN THE HIGH COURT OF AUSTR1\LIA

Office of the Registry

Sydney No S59 of 1991

B e t w e e n -

ALAN JOHN WILLIAMS, ALLAN
AGIPOTIS MORRIS, COLIN LESLIE

GIBBS, and MARGARET YATES

Appellants

and

MICHAEL EDWARD SPAUTZ

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Williams(2) 1 7/11/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 NOVEMBER 1991, AT 10.16 AM

Copyright in the High Court of Australia

MR c.s.c. SHELLER, QC: If the Court pleases, I appear with

my learned friend, MR B.R. McCLINTOCK, for the

appellants. (instructed by Minter Ellison)

MR D.I. CASSIDY, QC:  May it please the Court, I appear with

my learned friend, MR W.J. TREGILGAS, for the

respondent. (instructed by O'Hearn & Bilinsky)

MASON CJ: Yes, Mr Sheller.

MR SHELLER:	Your Honours, this is an appeal from a decision of the Court.of Appeal. It was a majority
decision, reasons given on 28 November 1990, and
the order on 12 December 1990, and the appeal is against those parts of the order which concern these appellants, who were some only of the parties
to that order, and those parts of the order in
which the Court of Appeal overrode the declaration
that Mr Justice Smart had made that there was here
an abuse of process.  May I hand up to Your Honours
the outline of the appellants' submissions.

MASON CJ: Thank you, Mr Sheller.

MR SHELLER:	Your Honours, in that outline we have summarized the nature of the proceedings that were
brought against the appellants in paragraphs 2 and given Your Honours the references as to where they
will be found in the appeal book, and then referred to the proceedings before Mr Justice Smart, and
then, in paragraph 4, the finding of
Mr Justice Smart upon which the ultimate conclusion
as to abuse of process turned. We have taken that
passage from the judgment of Mr Justice Priestley,
that is to say, that all proceedings - and he
quoted from His Honour:

were instituted with the predominant purpose

of placing pressure on the University of

Newcastle to reinstate him and/or agree to a favourable settlement of his wrongful

That finding, in His Honour the trial judge's dismissal suit.	judgment, is found at page 34 at line 15, and
page 38 at line 2.

Your Honours, in the paragraphs that follow we

refer to the background of the respondent's
dismissal by the university council in 1980, and

then some other improper purposes that were found

by His Honour the trial judge. Again, we have

given the reference to the judgment of

Mr Justice Priestley. His Honour's finding is at

page 37, line 18 of the appeal book. Then, we

refer to the declaration made by Mr Justice Smart

which was largely based upon the reasoning of

Williams(2) 2 7/11/91

Mr Justice Hunt in Spautz v Williams, and then we

refer to the approach taken by the Court of Appeal,

the majority.

Your Honours, as we would understand the

judgment of the majority, it turned upon two

matters and those we have,summarized in

paragraphs 16 and 17 of the written submission. If

I can take them in reverse order: first, that courts should restrict the use of power to control abuse of process to those cases in which the use of the power is the only way of ensuring that an

accused person is not deprived of a fair trial

because of such abuse. That part of the majority's

reasoning was said to be based on the reasoning of

this Court in Jago v District Court, 168 CLR 23.

The second basis for the majority reasoning

was that even if a litigant's purpose was improper,
proceedings - and in that sense the proceedings were an abuse of process - no consequence could flow from that absent what was described as some

improper act after the issue of the process.

Your Honours, that we have referred to in

paragraph 16 of the written submission.

Your Honours, fundamentally we submit that the

first of those reasons is not supported by the
reasoning of this Court in Jago's case, rather the

reverse, and secondly, as to the second, that there

is really nothing to support that conclusion, we

would submit that the very issuing of the process

may involve an abuse and it is not necessary that

there be some other further act after issue.

Your Honours, I would propose to approach the

matter by seeking to establish a number of

propositions: first amongst them, what is meant by

abuse of process, and in that regard to refer, as

the courts have done, to the tort of abuse of

process, or the action for abuse of process; then

come to the recognition, certainly in England and in New Zealand, and we would submit, in this Court	in Jago, that abuse of process can, and indeed
should, empower or entitle the court to intervene
by a permanent stay and to emphasize to Your Honours the fundamental reason for this, which
is public interest, and public interest as it was
usefully described in Moevao in the New Zealand
Court of Appeal, which was taken up, quoted and agreed to by Your Honour the Chief Justice in
Jago's case.
Public interest - the need for the courts to protect their processes as part of the new
administration of justice and the need to maintain
confidence in the court process - we would

Williams(2) 7/11/91

respectfully submit, is the key, or certainly of great significance in determining whether or not there is a power of a wider nature than that

recognized in the Court of_ Appeal.

It is noteworthy, with respect to His Honour

Mr Justice Priestley, that throughout the judgment

there seems to be little discussion of that public

interest aspect, and indeed, although there is

quite considerable reference to Jago the public

interest part of it, and particularly the part

where Moevao is referred to, does not seem, as we

read it, to be dealt with.

Now, Your Honours, if one comes back to the

action for abuse of process, one starts with what

is an important distinction between such action and

malicious prosecution and, Your Honours, a

fundamental ingredient of malicious prosecution is

an absence of reasonable and probable cause for

asserting the claim. And it is for reason - and

this is shortly, and we would submit accurately

described in His Honour Mr Justice Priestley's

judgment in the appeal book at page 147 starting at

line 21 - but because of what is said to be a rule

of policy whereunder no one is allowed to allege of

pending proceedings that they are unjust, and
because the law will not permit the position to
arise where two courts at the same time are

considering the same issue between the same

parties, it is an essential requisite of the action

of malicious prosecution that it cannot be

maintained until the result of the prosecution has

shown there was no ground for it; that indeed, it

was groundless, that indeed, there is a basis for

saying that it was brought without the necessary
reasonable and probable cause.

Your Honours, a passage which neatly states that proposition is found in the speech of

Lord Selborne in Metropolitan Bank v Pooley. This

to be found in the judgment of Mr Justice Isaacs in	is not on our list, Your Honours, but the quote is	varawa v Howard Smith, (1911) 13 CLR 35 to which I
would wish now to take Your Honours. The
particular passage from the speech of Lord Selborne is to be found at page 81, and it is about half-way
down page 81 where His Lordship said:

"An action for malicious prosecution cannot be

maintained until the result of the prosecution

has shown that there was no ground for it."

By contrast, in the case of an action for abuse of process, there it does not matter that there is no reasonable cause or there is reasonable cause for

the claim. And if I could ask Your Honours to go

Williams(2) 4 7/11/91

forward in the judgment of Mr Justice Isaacs to

page 91, His Honour there, about half-way down the

page said:

The plaintiff's action having commenced

while the original action was pending and the

order for bail being, until that action ended,
always in full force and operation, I am of

opinion, for the reasons given, that he must

fail as to his claim for malicious arrest.

And, pausing there, Your Honours, this was a case

in which Howard Smith asserted that it had sold a

vessel to Varara. It sued to recover the price

and, at the same time that it commenced those

proceedings, commenced by way of ca re to seek to

arrest, and indeed successfully arrested Varawa

before he left the State jurisdiction. The
question turned upon whether or not that was a
malicious prosecution or a malicious arrest and

then, as His Honour went on to say, continuing down

on page 91:

Then the appellant urges that this may be

regarded as an action for abuse of process.

Such an action is well known. In the sense

requisite to sustain an action, the term

"abuse of process" connotes that the process

is employed for some purpose other than the

attainment of the claim in the action. If the

proceedings are merely a stalking-horse to

coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they

are regarded as an abuse of process for this

purpose, and as ex hypothesi the final

judgment however given will have no reference

to the ulterior purpose, there is no necessity
to await the irrelevant determination.

Then His Honour made reference to the decision of Grainger v Hill, Parton v Hill and the

observations of Mr Justice Williams in
Gilding v Eyre.	He went on:

I am of opinion the evidence here does not support any case upon which the jury could find there was in the necessary sense an abuse

of legal process. The purpose which the

respondents had in view, however otherwise the

facts could be reasonably regarded by a jury,

was to get from Varawa, wherever he got it

from, money as compensation for the alleged

loss of a bargain, the right to which was

clearly within the scope of the action.

Williams(2) 7/11/91

Your Honours, in that case, one also finds a

passage at page 55 in the judgment of the

Chief Justice Sir Samuel Griffith, dealing with abuse of process. That starts a little over half-

way down the page where His Honour said:

I do not think it necessary to deal fully with
the interesting argument founded on the

alleged "abuse of the process of the Court" as

distinct from malicious arrest. That term has

been used in different senses. In

Grainger v Hill it was used of an action

founded upon a use of original process for

purposes foreign to the scope of the process

itself, that scope being merely to obtain

security for enforcing the payment of an
alleged debt. In Gilding v Eyre it was used

of an action founded upon the use of process

which the party had a formal right to issue

for the purpose of obtaining payment of money

which to his knowledge had been already paid.

Then, Your Honours, in the judgment of

Mr Justice O'Connor, at page 69 His Honour

commences to discuss it at the bottom of page 69

and running on to page 70 through into page 71 - it

goes about a third of the way down the page.	If I
could just at this stage invite Your Honours to
look about two-thirds of the way down page 70,
where His Honour refers to Grainger v Hill:

the complaint must be that the process of the

Court has been abused to effect an object not

within the scope of the process. That

statement expresses in as few words as

possible what is necessary to constitute the
cause of action for malicious abuse of

process, and being founded on the principles

of the common law it is the same in New South

Wales as in Victoria.

Your Honours, Grainger v Hill is consistently referred to and it is reported in a number of

places but that which is usually referred to is

found in 4 Bing (NC) 212, which is 132 ER 769.

Your Honours, the particular propositions relied

upon are found in the judgment of the Chief Justice

at page 773 in the reprint, page 221 in the report,

where His Lordship makes reference to what is

described as:

The second ground urged for a nonsuit is, that there was no proof of the suit commenced by

the Defendants having been terminated. But
the answer to this, and to the objection urged in arrest of judgment, namely, the omission to

allege want of reasonable and probable cause

Williams(2) 6 7/11/91

for the Defendants' proceeding, is the same:
that this is an action for abusing the process

of the law, by applying it to extort property

from the Plaintiff, and not an action for a

malicious arrest or malicious prosecution, in order to support which action the termination

of the previous proceeding must be proved, and

the absence of reasonable and probable cause

be alleged as well as proved.

And then a little bit further down, about five

lines down, His Lordship said:

and his complaint being that the process of

the law has been abused, to effect an object

not within the scope of the process, it is

immaterial whether the suit which that process

commenced has been determined or not, or

whether or not it was founded on reasonable

and probable cause.

And then, in the judgment of Mr Justice Park -

and this is at 222:

The argument as to the omission to prove the

termination of the Defendants' suit, and to

allege want of reasonable and probable cause

for it, has proceeded on a supposed analogy

between the present case and an action for a

malicious arrest. But this is a case primae

impressionis, in which the Defendants are

charged with having abused the process of the

law, in order to obtain property to which they

had no colour of title; and, if an action on

the case be the remedy applicable to a new

species of injury, the declaration and proof

must be according to the particular

circumstances. I admit the authority of the cases which have been cited, but they do not

apply to the present.

And then, on page 774, at the bottom of

page 223 of the original text, Mr Justice Vaughan: So, with respect to the argument in arrest of

judgment, this case stands on its own peculiar

circumstances. It is an action for abusing
the process of law, by employing it to extort

property to which the Defendants had no right:

that is of itself a sufficient cause of

action, without alleging that there was no

reasonable or probable cause for the suit

itself.

And then, in the judgment of

Mr Justice Bosanquet, a bit further down on page

774 - 224 of the original report:

Williams(2) 7/11/91

Then, as the record stands, it was not necessary to prove, and I think, under the circumstances of this case it was not necessary either to allege or prove the

termination of the Defendants' suit. This is

not an action for a malicious arrest or

prosecution, or for maliciously doing that

which the law allows to be done: the process

was enforced for an ulterior purpose; to

obtain property by duress to which the

Defendants had no right. The action is not

for maliciously putting process in force, but

for maliciously abusing the process of the

Court. And that distinction is an answer as

well to the argument in arrest of judgment, as

to the argument in support of a nonsuit.

Your Honours, to like effect, if I could

invite Your Honours to go to Gilding v Eyre,

10 CB(NS) 592, 142 ER 584. In Varawa this is

referred to as the judgment of Mr Justice Williams.

In fact, it is the judgment of Mr Justice Willes

which appears at page 589 with which, apparently,

his brother Williams agreed, as appears from the

first paragraph of that judgment. At about

half-way down page 589, it is said - this is
half-way into the paragraph that starts "Since the

cases":

but he contended that the plaintiff in the

present case, before bringing his action,

should have obtained his discharge from

custody by an order of the court or a judge,

as in the cases referred to; and that his

omission to shew such discharge on the face of

his declaration rendered it bad, as being

inconsistent with a want of reasonable and

probable cause, and as shewing that the former
proceedings had not terminated in his, the
plaintiff's favour.

And then, the next paragraph after one: It is a rule of law, that no one shall be

allowed to allege of a still depending suit

that it is unjust

and this is the point taken up by

Mr Justice Priestley:

This can only be decided by a judicial

determination, or other final event of the
suit in the regular course of it. That is the
reason given in the cases which established

the doctrine, that, in actions for a malicious

arrest or prosecution, or the like, it is

requisite to state in the declaration the

Williams(2) 7/11/91

determination of the former suit in favour of
the plaintiff, because the want of probable
cause cannot otherwise be properly

alleged ..... But, in the present case, the

complaint is not that any undetermined

proceeding was unjustly instituted. The

alleged cause of action is, that the defendant
has maliciously employed the process of the
court in a terminated suit, in having by means

of a regular writ of execution extorted money

which he knew had been already paid and was no

longer due on the judgment.

Your Honours, in this Court the action was

referred to again in Dowling v Colonial Mutual

Assurance Society, (1915) 20 CLR., 509, and the

particular passages to which I would invite

attention are in the judgment of Mr Justice Isaacs

at page 521 and then at page 524. In this case the

Assurance Society had issued a petition for sequestration and it was claimed that that was not bona fide to obtain payment of a debt or debts but

to ascertain by examination who had instigated

publication of certain defamatory matter. The

Chief Justice, as appears from page 516, thought

that it did amount to an abuse of process.

Mr Justice Isaacs and Mr Justice Powers dissented,

and in the passage at page 521, at the bottom of

the page, Mr Justice Isaacs referred to the wrong

by malicious use of process.	In the last paragraph
on that page, he said:

In English law there has long been recognized a form of wrong by malicious use of

process - such as by malicious arrest. But in

order to maintain an action for malicious use
of the process there must have been a

termination of the suit in plaintiff's favour.

If, however, there has been an abuse of the

process, as distinguished from the use of it,

it is unnecessary to show any such termination

of the suit. If the object sought to be

effected by the process is within the lawful

scope of the process, it is a use of the

process within the meaning of the law, though

it may be malicious, or even fraudulent, and

in the circumstances the fraud may be an

answer; if, however, the object sought to be

effected by means of the process is outside
the lawful scope of the process, and is
fraudulent, then - both circumstances
concurring - it is a case of abuse of that
process, and the Court will neither enforce

nor allow it to afford any protection, and

will interpose, if necessary, to prevent its

process being made the instrument of abuse.

Williams(2) 9 7/11/91

And then His Honour referred to Grainger v Hill.

There is there the indication of the courts

interposing to prevent its process being made the

instrument of abuse.

McHUGH J:  I have some difficulty with this, having regard

to the development of malice in the action for

malicious prosecution, because malice in that

action now means only improper motive.	So what is
the distinction between the two torts?	Why is it

not, on this theory, the action for malicious

prosecution and abuse of process?

MR SHELLER:  Your Honour, it would be generally acknowledged

that it is, but the significance of referring to it

is not so much to point to the particular

requirements of that action as to indicate that by

contrast, when one is talking of abuse of process

in the sense of commencing or proceeding with a

process for an ulterior purpose, one is talking of

something that does not depend at all upon some

reasonable cause.

I accept what Your Honour says, that that may

well now be true also of malicious prosecution, but

be that as it may, we submit that it is a

significant step in understanding why a court

should intervene, that it is not concerned with

whether or not there is a reasonable cause for the

proceedings, when one is talking of this sort of

abuse of process. We submit that it is not

concerned with that, but what it is very much

concerned with is questions of public interest.

So that what I am seeking to draw out of this

is, and perhaps I put it too high when I said that

one can contrast them, but what I am seeking to
draw out of it is that certainly so far as this

form of action is concerned, reasonable cause is

not an ingredient, and the fate of the proceedings

themselves is not significant.

TOOHEY J:	Does it not bear upon the idea of the scope of the process to look to the cause of action itself
in its reasonableness or otherwise?
MR SHELLER:	Your Honour, if I can say it, it may be a

relevant factor in the sense of an evidentiary

factor. But if one came to the conclusion that one

was not satisfied that there was no reasonable

cause, that would not deny a conclusion that even

so there was an abuse of process. I do not want to

suggest that if one could show that the claimant

had no reasonable cause for the action that he

commenced, that that would not be a significant

factor in determining that there was an abuse. But what I am anxious to submit to Your Honours is that

Williams(2) 10 7/11/91

the absence of that conclusion does not mean that

there cannot be an abuse of process.

McHUGH J: But it does seem rather strange, does it not?

Take the facts of these cases. Suppose there is no

reasonable cause for these actions. Then you could not bring an action for malicious prosecution until the proceedings were determined, even though there

was an improper motive and no reasonable cause for
the institution of the prosecution. Yet you say
you could bring an action for tort for abuse of

process on the same facts at this stage?

MR SHELLER:  Yes.

McHUGH J: Well, it may be that these cases on abuse of

process as opposed to malicious use of process need

to be subsumed in some rationalization in the law.

MR SHELLER:  Your Honour, the rationalization is that if

there is no reasonable cause, and if there is

malice, then there is a particular form of action.

Now, I accept what Your Honour says that it may no

longer be necessary to show that there was no
reasonable cause, even in an action for malicious
prosecution or, as is described in some of these

cases, malicious arrest.

TOOHEY J: But Mr Sheller, do the ingredients that go to

make up the tort of abuse of process offer anything
more than an analogy in the sort of case that we

are concerned with here?

MR SHELLER:	Your Honour, no more than that except that they give meaning to the expression "abuse of process"
as embracing ulterior purpose or object, and that
is really why I go to them because they have been
consistently referred to as laying the ground for
what is meant by "abuse of process", or this
particular type of abuse of process, not exclusive,
but embracing this type of abuse of process.
McHUGH J: Well, there are many forms of abuse of process.

For example, in the defamation field it is held to

be abuse of process if you could sue for defamation

a publication in New South Wales and Victoria in

the one State and you commence separate actions in

different States. It is an abuse of process of the

second State.

MR SHELLER:  And, Your Honour, if one goes through the

judgments there are many references to,

particularly English criminal cases in the House of

Lords where various things have been advanced as

abuse of process. In this Court in Jago, the right

to a speedy trial or the denial of a speedy trial

or the delay in trial, it was argued, was yet

Williams(2) 11 7/11/91

another form of abuse of process. So that, I am

not seeking to suggest to Your Honours that this is

an exclusive definition, but what I am seeking to

suggest to Your Honours is that embraced within the ambit of abuse of process is a process which has an

ulterior purpose or object.

DEANE J: But on your argument you could wait until the

proceedings were over and if you won you could sue

for malicious prosecution; if you lost you could

sue for abuse of process.

MR SHELLER:  Yes.

DAWSON J: Is that right? Because, with an action for

malicious prosecution you are seeking to have the

man imprisoned, arrested. You are seeking the end

of the litigation. When it is abuse of process you

are seeking something else.

MR SHELLER:  Yes. Your Honour, what I meant, or what I

understood to be put to me is that if proceedings

were commenced without reasonable cause and were

malicious, and if also they were commenced for some ulterior object, if at the end of the day one - the victims - - -

DEANE J:  No, I was not putting to you without reasonable

cause. What I said was, that your proposition

amounts to this: that if proceedings are brought

for an ulterior purpose, and they fail, if they

fail and they were brought without reasonable cause

you could bring proceedings for malicious

prosecution. If they succeed and succeed hands

down, because they were absolutely justified, but

were brought for an ulterior purpose, on your

argument you could sue for abuse of process.

MR SHELLER: Yes, Your Honour, but can I just take a step

back to make certain that I have not put it in a

way that would be against what I am trying to put

to Your Honours. If the case is one of malicious

prosecution, in the sense that the prosecution is

one which is instigated with malice and, let it be

assumed for present purposes, without reasonable

cause - but that may not matter - and ultimately it

fails, then the action for malicious prosecution

lies, but until that ultimate failure is known it

cannot lie.

If that action is also commenced for an

ulterior object, if at the end of the day the
victim succeeds, even so, we would submit there

still lies an action for abuse of process.

McHUGH J: Well, that strikes me as amazing, really, that

you could get damages even though you were

Williams(2) 12 7/11/91

successfully prosecuted and, by hypothesis, rightly

prosecuted.

MR SHELLER:  Your Honour, the fundamental part of it is that

whatever may be the outcome, what has been done is

unlawful in the sense that the court's process has

been abused.

McHUGH J: Perhaps the solution is this: that you can get a

stay for abuse of process if you show both

improper motive and lack of probable cause, but

then you would not really need - you would have it

struck out.

MR SHELLER:  Your Honour, it is because of that proposition

that we seek to emphasize that traditionally abuse

of process has not required a demonstration that

there is no reasonable cause, and that is a

tradition which has been dealt with in the English

cases and seems to have been accepted in the two
cases in this Court to which I have referred and,

of course, that is fundamental. If, indeed, the

abuse of process requires it to be demonstrated

also that there is no reasonable cause, then that

is something additional and contrary to what has

been said and, of course, in this case would bring

about a totally different result because it is not

part of the case here, as it has been presented and

as this appeal is argued, that there was no

reasonable cause.

TOOHEY J:  On that basis, Mr Sheller, the expression, "scope

of the process" looks only at the purpose to be

achieved, does it not?

MR SHELLER: Yes. Sometimes described as "object" or

"purpose", or what is to be achieved.

BRENNAN J:  I do not know whether you need to go to the

elements of the tort in order to make good your

claim. As I understand your basic proposition, it

is the stay, on the ground of abuse of process, can

be obtained without demonstrating the absence of

reasonable or probable cause and, indeed, if it

were not so, the application for the stay would

provide the abuser with the platform which he was

seeking.

MR SHELLER:  Yes, Your Honour. Your Honours, of course, it

may be that I have gone wider than I need, I accept

that, but the reason I do it is that invariably

when the stay application, or the power of the

court to stay if an abuse is discussed, reference

is made back to this action, and what is said in

Grainger v Hill, and what is said thereafter.	Now,
there was a great deal of discussion in
Mr Justice Priestley's judgment about this, and

Williams(2) 13 7/11/91

whether Hill v Grainger decided precisely what it

is said to have decided, but it is then that we

seek to come to what, we say, is critical in terms

of an application for a stay, that is to say,

public interest questions, and it is that that, we

submit, is taken up in Jago's case.

McHUGH J: Supposing somebody finds out that his enemy has

committed some offence that nobody else is

interested in prosecuting and the person says, "At

last; here is my chance to get revenge on all

these wrongs that this man has done to me. I'll

now prosecute him." That would be an improper
motive in one sense. Can you stay the proceedings

then? On your case you could not.

MR SHELLER:  Your Honour, it seems here one has to draw a

distinction between motive and object. If what the

object of what he is doing is simply to bring the
criminal law into play in the ordinary way, to have

an investigation as to whether a crime has been

committed and so on, Your Honour, whatever his

motive does not seem to matter.

But if on the other hand that prosecution is

pursued with the object of achieving what is

described as an ulterior object, for example, Your

Honours, if such a proceeding were commenced

because it was hoped, by threatening or bringing

them, some deal could be done with a third party

favourable to the person bringing it, and that was

the object, or the predominant object of what was

being done, then we would respectfully submit that

is different and yes, that is an abuse of process.

That is a distinction that flows through all

the cases, and no doubt at times it is a matter of

degree and difficulty.

McHUGH J: That is perhaps the distinction between an abuse

of process and the use of process in the malicious

prosecution case, because in the malicious

prosecution case, it is improper motive, whereas

you are saying that in the abuse of process, it is

ulterior object.

MR SHELLER:  I am grateful to Your Honour. With respect, I

think that is a distinction that should be drawn.

Can I put this submission to Your Honours, that

quite simply the question, when one is talking of

this sort of abuse of process, is whether the

process is being used for an ulterior purpose.

Nothing further is required. Your Honours, in that

regard, if the purpose, as was found here, was to place pressure on the university to reinstate the

respondent or to agree to a favourable settlement

Williams(2) 14 7/11/91

of other proceedings, then it falls within that

category.

Your Honours, in our written submissions at

paragraph 10 we have referred to the cases, four of

which I have gone to. In two more recent decisions

in England, this action is discussed.	We have
given Your Honours the reference.	May I just add

to the reference to the Metall v Rohstoff case the

particular pages, which are found in the judgment

of Lord Justice Slade at page 469 and 470, his

being the judgment of the court. Your Honours, it

is in that case that one sees also the use of the

expression "predominant purpose".

Your Honours, we then set out the reference in

paragraph 11 to a passage that I read to

Your Honours.	I then come to paragraph 12 and the
question of permanent stay.	Our submission in that

regard is that the court has jurisdiction to, and

will, permanently stay proceedings undertaken for

an object not within the scope of the process. It

does so, we submit, for reasons of public interest,

for reasons of the due administration of justice

and matters of public confidence - and I will

return to those. It does not do so primarily for

reasons of fairness, though those are no doubt

matters for consideration, or primarily to protect
the victim, but to protect its own process.

Your Honours, we submit the propositions that I have put to Your Honours are discussed in Jago's case, but before I come to that may I refer to two

decisions of the English Court of Appeal: the

first, In re Majory, (1955) Ch 600, and it is a

particular passage in the judgment of the Master of the Rolls at page 623, this being a case concerning the use, or alleged use of bankruptcy proceedings

oppressively. The judgment of the Master of the

Rolls was the judgment of the court and, in stating

at page 623 the rule as to bankruptcy, at the

bottom of the page His Lordship said in

paragraph(3):  The so-called "rule" in bankruptcy is, in

truth, no more than an application of a more

general rule that court proceedings may not be

used or threatened for the purpose of

obtaining for the person so using or
threatening them some collateral advantage to

himself, and not for the purpose for which

such proceedings are properly designed and

exist; and a party so using or threatening

proceedings will be liable to be held guilty

of abusing the process of the court and

therefore disqualified from invoking the

Williams(2) 15 7/11/91

-powers of the court by proceedings he has

abused.

That passage was referred to in the later decision of the Court of Appeal in Goldsmith v Sperrings,

(1977) 1 WLR 478, the case of a large number of

defamation writs issued not only against publishers

but distributors and an attempt by some of those

distributors to have the proceedings declared an

abuse of process. That failing by the judgment of the majority, the dissentient being Lord Denning -

and the first passage which is referred to commonly

in the judgment of Lord Denning begins at page 489

and, Your Honours, it is under the heading "Abuse

of legal process" and about just below line D

His Lordship refers to:

The judges can and will intervene to stop it.

And then goes on to refer to a number of cases

including Grainger v Hill and In re Majory and

concluding at the bottom of page 490 that he knows:

the remedy by staying the process is a strong
remedy, and only to be exercised in

exceptional cases. But there are cases in

which justice may require it to be done.	And
then it should be done if the evidence is
sufficient for the purpose.
Both the dissenting members of the court

acknowledged, we would submit, the power to stay

and, if I could ask Your Honours to go firstly to

the judgment of Lord Justice Scarman, at page 498,

at about line F - and this is a discussion that

really runs from the second paragraph of

His Lordship's judgment on to line Con page 499,

but at line Fon page 498 His Lordship said:

If Sir James Goldsmith's purpose in initiating

or pursuing his actions against the secondary

distributors be to destroy "Private Eye",

namely, to use his wealth so as to suppress

it, he is abusing the process of the court.

And then he goes on to discuss that, and at just

above line H:

It is right, therefore, that to obtain before

trial the summary arrest of a plaintiff's

proceedings as an abuse of the process of the

court, the task of satisfying the court that a

stay should be imposed is, and should be seen

to be, a heavy one.

Then he goes on to describe what the defendants had

to show, and conclude that:

Williams(2) 16 7/11/91

The judge was not satisfied that this was

Sir James Goldsmith's purpose. Neither am I.

That is at line Con page 499.

If I could ask Your Honours then to go to

page 501 in his judgment, just about two lines down

the page, His Lordship said:

If the true issue be, as upon the authorities

it must be, what was (and is) the purpose of

Sir James Goldsmith in pursuing the rights

given him by law against the secondary

distributors, Sir James Goldsmith is not

putting the press in peril. If his purpose be

illegitimate, his actions will be stayed. If

it is not, he is exercising rights given him

by law. If, therefore, there be in these
proceedings a threat to press freedom, the

threat comes, not from Sir James Goldsmith,

but from the law itself, in that it provides a

cause of action against distributors as well

as publishers. That is a matter for

Parliament, not the courts. So long as the

cause of action exists, it may be invoked

unless it can be shown that it is being used

to secure a collateral advantage.

DEANE J:  Mr Sheller, does it matter that there is a proper

purpose as well as a collateral purpose, on your

argument?

MR SHELLER:  Your Honour, we would say not.

DEANE J: Because here, one of the purposes for criminal

defamation was vindication of reputation. I know

that has been found by the trial judge to be an

improper purpose. I have difficulty in

understanding that, I must confess. But if that

not be an improper purpose, you would say none the

less the fact that, without asking for anything, he

hoped that the pressure would lead to a settlement

of other claims meant that he was guilty of abuse
of process, even if your clients were guilty?

MR SHELLER:  And, Your Honour, of course here the word

"predominant" is used, which presumably means the
guiding or prevailing, prevailing or dominating

purpose. But we would submit that that being the

underlying purpose, and certainly the predominating

one, that is enough.

DEANE J: And this would also apply to civil proceedings.

MR SHELLER: Yes.

Williams(2) 17 7/11/91

TOOHEY J:  Do you place civil and criminal proceedings on

the same footing? You appear to be doing so, and I

just wonder about that.

MR SHELLER:  Your Honour, we would, because we would submit

that the public interest in both cases is identical

and, indeed, in the case of criminal proceedings it

may, if anything, be more in the public interest to ensure that proceedings are not prosecuted in abuse of the process.

TOOHEY J: Yes, I am not suggesting that the position of

somebody who seeks to restrain criminal proceedings

is necessarily weaker. It may indeed be

considerably stronger in the sense that it might be

easier to spell out an exterior purpose in the case

of criminal proceedings than it is in the case of

civil proceedings where, on the face of it, the.

plaintiff stands to gain some relief, for instance,

by way of damages. But the cases to which you have

taken us have all been cases involving civil

action.

MR SHELLER:  And I think it is right to say, Your Honours,

that until one gets to Moevao, where one finds an

application made in a criminal proceeding on this

particular sort of abuse, the rest of the cases

are, indeed, civil cases, where this principle is

discussed.

DEANE J: If you be right - and perhaps this is not a

relevant consideration - the way commercial

proceedings seem to be conducted in this country at

present one would find in every major commercial

piece of litigation two preliminary pieces of

litigation in which the motives of the directors

and everybody else on both sides for the action and

cross action were investigated for months before

the proceedings actually got under way to find

whether they were concerned with their position as

directors, whether they were motivated by a

personal dislike of the other directors, or whether

there was some other transaction between the

companies which they thought this action might help

settle.

MR SHELLER: But can I emphasize not motive, Your Honour.

It is always the case of what one is seeking to

achieve - - -

DEANE J: Well, substitute purpose or object for motive.

MR SHELLER:  And, Your Honours, of course, if proceedings

are commenced to recover damages, or whatever it

may be in a commercial sense, and the fact that

there may be all sorts of motives for doing that is

not relevant.

Williams(2) 18 7/11/91

DEANE J: But take this case. I mean, assume that the

respondent succeeded in convicting your clients for

criminal defamation for what they had said about

him - and I must confess I do not know what they

said - but assume that your clients are guilty and

he succeeds in convicting them of criminal

defamation and thereby demonstrating to the world

the injustice of the attacks on his reputation and
the injustice of his own dismissal, one would think

by that action he would achieve the object or

purpose, that the conviction would be a step in

achieving it.

MR SHELLER:  Your Honour, of course, there is a distinction

probably between doing this by a criminal process

rather than a civil process. I mean, as I would

understand it, ordinarily to vindicate reputation

the civil process is the appropriate one, and,

indeed, it was for that reason that His Honour

refused the application in the case of those

parties who had sought to have a declaration of

abuse based upon civil defamation proceedings.

DEANE J:  But on the basis on which we must approach this

case your clients have wrongly dismissed the

respondent and have then criminally defamed him,

and he is maintaining these criminal defamation

proceedings to obtain personal justice including

the vindication of his reputation.

MR SHELLER:  I do not think Your Honour should proceed on

the basis that he has been wrongly dismissed. The

only point that we would acknowledge is that we do

not have to show, and have not shown, that there

was not reasonable ground for the defamation

proceedings.

DEANE J: But you say that you are entitled to succeed, even

if he has been wrongfully dismissed and he has been

criminally defamed.

MR SHELLER: Yes, but, Your Honour, certainly we are

entitled to proceed even if he has a reasonable

cause for his defamation proceedings.

DEANE J: Even if he has been criminally defamed and

wrongfully dismissed?

MR SHELLER: Yes. The second, Your Honour, I do not think

is a necessary leg, with respect, the wrongful

dismissal. I mean, it may or may not be so.

DEANE J: But if it is irrelevant, you say you are entitled

to succeed even though he has been wrongfully

dismissed and criminally defamed.

Williams(2) 19 7/11/91

MR SHELLER:  It really is on the basis that that is

irrelevant, Your Honour. I appreciate what

Your Honour says, but it is simply not a relevant consideration and one does not take it into account

one way or another when one looks at what the

object is, as found here, in commencing criminal

proceedings, but I appreciate - I mean, one may

make assumptions about, with respect, irrelevant

facts, but that does not rarely, with respect,

throw light upon what this particular case is

about, though I acknowledge that we do not have to

show, and have not shown, that there was no

reasonable cause.

DEANE J: Yes, I see the force of that, Mr Sheller.

BRENNAN J:  Mr Sheller, there is a relevance though, is

evidentiary difficulty for a party seeking a stay?	there not, in the sense that it presents a grave relief, if granted, would clearly be to the advantage of the party against whom the stay is
sought and give him something of the kind of relief
to which he is not only entitled but which he is
aiming for, it is difficult in those circumstances to prove the predominant, impermissible motive
because do you not have to go to the extent of
saying that the predominant motive - take, for example, the criminal defamation action - is not to
get the relief which those proceedings could lead
to, but simply to institute the proceedings as a
form of litigation blackmail.

MR SHELLER:	Yes, Your Honour.
MR SHELLER:	Yes, Your Honour.

BRENNAN J: Well, that is a heavy evidentiary onus for you

to discharge.

MR SHELLER:  It is, Your Honour, but of course here one has

the unusual feature that that seems to be

acknowledged from the documents, that predominant
purpose, and the finding that was made.	It may be

that it is unusual in the sense that from an

evidentiary point of view we were able to establish

to the satisfaction of the trial judge that this

was the primary or the predominant object or

purpose. It is true, of course, that in many cases

that may be an impossible task, whatever one's

suspicions about it may be. But that is this case,

Your Honour. The case is based, as I said when I

started, on that finding that was made and

acknowledged, and which we set out in the written

submission in paragraph 4. That, we would

respectfully submit is, indeed, or could be

described as a sort of litigation blackmail.

Williams(2) 20 7/11/91

Your Honours, if I could just give one last

reference to the judgments in Goldsmith v Sperrings

Ltd (1977) 1 WLR 478, the judgment of

Lord Justice Bridge where he deals with this, and

he deals with it at page 503. It is a passage that

touches upon what Your Honour Mr Justice Deane put
to me a little while ago, in terms of "is it enough

that there be this purpose whatever other purposes

there may be". His Lordship, at page 503, having

quoted from Majory, says under that quotation:

For the purpose of Lord Evershed's general rule, what is meant by a "collateral

advantage"? The phrase manifestly cannot
embrace every advantage sought or obtained by

a litigant which it is beyond the court's

power to grant him. Actions are settled

quite properly every day on terms which a

court could not itself impose upon an

unwilling defendant. An apology in libel, an

agreement to adhere to a contract of which the

court could not order specific performance, an

agreement after obstruction of an existing

right of way to grant an alternative right of

way over the defendant's land - these are a

few obvious examples of such proper

settlements. In my judgment, one can

certainly go so far as to say that when a

litigant sues to redress a grievance no object

which he may seek to obtain can be condemned

as a collateral advantage if it is reasonably

related to the provision of some form of

redress for that grievance. On the other

hand, if it can be shown that a litigant is

pursuing an ulterior purpose unrelated to the
subject matter of the litigation and that, but

for his ulterior purpose, he would not have

commenced proceedings at all, that is an abuse

of process. These two cases are plain; but

there is, I think, a difficult area in

between. What if a litigant with a genuine

cause of action, which he would wish to pursue

in any event, can be shown also to have an

ulterior purpose in view as a desired

byproduct of the litigation? Can he on that

ground be debarred from proceeding? I very

much doubt it.

And then he said that it was unnecessary because the facts of the case did not raise the

question to consider it further. So that,

Your Honours, it is undoubtedly an area which is difficult, but one finds on the one hand, we would

submit, clear, if not authority, at least dicta, to

support the conclusion that the court will

intervene by a permanent stay if the purpose of the

process is an ulterior purpose.

Williams(2) 21 7/11/91

We would respectfully submit that the trial

judge, having come to the conclusion he did in this

case, fell within the area where the court may

intervene. Your Honours, one then asks: "But on

what basis or why?" May I then go, Your Honours,

to the decision in the New Zealand Court of Appeal

of Moevao v Department of Labour, (1980) 1 NZLR

464.

This, indeed, was a case where the court's

intervention was sought to stay a criminal
prosecution said to have been invoked for an

improper purpose but there being, as it turned out,

no evidence to support that allegation, but the

principles were discussed. Your Honours, in the

judgment of the president, starting at the bottom

of page 465, there is reference to a number of

English cases, including Connelly and Humphrys,

where there is, to a greater or lesser extent, an

acknowledgement of the power of the court to

intervene in criminal proceedings where there is an

abuse of process, but none of them was what I would

describe as an ulterior purpose case.

They were cases such as Connelly where the question was whether an accused, having been

acquitted on a murder count, could then be indicted

on a robbery count, a robbery allegedly committed

at the same time in the same place; questions as

to whether or not there was or could be issue

estoppel in criminal cases. In Sang's case, which

is referred to on page 468 at line 40, the

reference there is now, Your Honours, (1980) AC

402, Sang's case, whether the judge had power to

intervene to exclude admissible evidence extended

to evidence obtained from an agent provocateur.

Your Honours, it was in that case that

Lord Scarman said in the passage quoted by the

president at the bottom of the page 468, two lines

from the bottom:

Save in the very rare situation, which is not

this case, of an abuse of the process of the
court (against which every court is in duty

bound to protect itself), the judge is

concerned only with the conduct of the trial.

And that passage is found in the Appeal Cases at

the top of page 455 in Sang's case. At page 470, at the end of his judgment, His Honour said that:

On the present state of the authorities I

myself, and with respect, take a view similar

to that expressed by Lord Salmon in the

Humphrys case. However it cannot be too much

emphasized that the inherent power to stay a

Williams(2) 22 7/11/91

prosecution stems from the need of the Court

to prevent its own process from being abused.

And then he went on to say:

Therefore any exercise of the power must be

approached with caution. It must be quite

clear that the case is truly one of abuse of

process and not merely one involving elements

of oppression.

The next member of the court, Mr Justice Woodhouse,

seems also to have been satisfied that the power of

the court to intervene in such a case existed, and

one can perhaps pick that up, Your Honours, without
dwelling on it, from his comment at page 475, at

about line 51 and then what followed on from that

in his judgment. And then in the judgment of

Mr Justice Richardson, at page 479, starting at

line 5, His Honour said:

It now seems settled law, at least in

England and New Zealand, that a superior Court

has the power to take such steps as it

considers necessary in a particular case to

protect its processes from abuse. Such a

power is necessary to enable the Court to act

effectively within its jurisdiction and is

inherent in the exercise of its criminal

jurisdiction.

And then he said, modern development of the power

could be found in Connelly's case and, of course, as is acknowledged in Jago's case, when I come to

it, it is a power which is acknowledged in this

Court in a general sense in Clyne v NSW Bar

Association and in Barton's case. Your Honours, without going to those, because the passages are taken up in Jago, may I just give the reference;

Clyne, 104 CLR 186, at 201, and Barton v Reg,

147 CLR 75, at pages 96, 107 and 116.

Now, Your Honours, at page 481 in Moevao,

starting at line 31, Mr Justice Richardson takes up

the rationale behind this intervention, and we

would submit that when read, and I propose to go

through it with Your Honours, it shows that there

are involved two aspects of public interest: due
administration of justice as a continuous process

and public confidence in the administration of

justice. At line 31 His Honour said:

It is not the purpose of the criminal law

to punish the guilty at all costs. It is not

that that end may justify whatever means may

have been adopted. There are two related

aspects of the public interest which bear on

Williams(2) 23 7/11/91

this. The first is that the public interest

in the due administration of justice

necessarily extends to ensuring that the

Court's processes are used fairly by State and
citizen alike. And the due administration of

justice is a continuous process, not confined

to the determination of the particular case.

It follows that in exercising its inherent

jurisdiction the Court is protecting its

ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest

which is in the maintenance of public

confidence in the administration of justice.

It is contrary to the public interest to allow

that confidence to be eroded by a concern that

the Court's processes may lend themselves to

oppression and injustice.

Then over the page on page 482 at line 7 His Honour

said:

Considerations of these kinds are, in my

view, at the heart of the abuse of the process principle. The concern is with conduct on the

part of a litigant in relation to the case

which unchecked would strike at the public

confidence in the Court's processes and so

diminish the Court's ability to fulfil its
function as a Court of law. As it was put by

Frankfurter J ..... "Public confidence in the

fair and honorable administration of justice,

upon which ultimately depends the rule of law,

is the transcending value at stake".

The justification for staying a

prosecution is that the Court is obliged to

take that extreme step in order to protect its

own processes from abuse. It does so in order

to prevent the criminal processes from being

used for purposes alien to the administration

of criminal justice under law. It may
intervene in this way if it concludes from the
conduct of the prosecutor in relation to the
prosecution that the Court processes are being

employed for ulterior purposes or in such a

way (for example, through multiple or

successive proceedings) as to cause improper

vexation and oppression. The yardstick is not

simply fairness to the particular accused. It

is not whether the initiation and continuation
of the particular process seems in the

circumstances to be unfair to him. That may
be an important consideration. But the focus

is on the misuse of the Court process by those
responsible for law enforcement. It is

whether the continuation of the prosecution is

Williams(2) 24 7/11/91

inconsistent with the recognised purposes of

the administration of criminal justice and so

constitutes an abuse of the process of the

Court.

Then His Honour referred to what he described as - a further constraining consideration.

Different persons may well have very different

views as to what constitutes an abuse of

process in the particular case.

And he referred to what Lord Hodson said in

Connelly -

that he would find a discretion to determine

whether or not a prosecution should be stopped

"immensely difficult to exercise at all, nor

should I know how to exercise it judicially".

The twin problems of an absence of objectively

ascertainable standards and the relative
unfamiliarity of the Courts with the weighing
of all the considerations which may bear on
the exercise of prosecutorial responsibility
require the Courts to tread with the utmost

circumspection. While the Court must be the

master and have the last word, it is only

where to countenance the continuation of the

prosecution would be contrary to the

recognised purposes of the administration of

criminal justice that a Court would ever be

justified in intervening.

Your Honours, we would urge upon Your Honours

those as the principles that are fundamental to consideration of whether or not the Court has a

power to stay in circumstances such as the present

and we would respectfully submit that they point

strongly in the direction that it has, and they

point strongly in the direction that it has where

it is shown that the purpose is an ulterior

purpose, and that alone.	Your Honours, we would
respectfully submit that that is an aspect and,

indeed, a conclusion which is contrary to the
approach and the reasons taken by the majority in

the Court of Appeal for allowing this appeal.

Those passages were taken up and quoted and

agreed in by Your Honour the Chief Justice in

Jago's case and, of course, Jago's case, 168 CLR

23, was central to the reasoning of

Mr Justice Priestley. Your Honours, it is

important to emphasize that that case was about

what was, perhaps, loosely described as a right to

a speedy trial, or a right not to be denied a

speedy trial. It was in that context that

questions arose as to fairness and whether or not a

Williams(2) 25 7/11/91

denial of fairness to an accused involved an abuse
of process, whether one could, in effect, fit that

into the abuse of process box.

The two questions raised are described in the

judgment of Your Honour the Chief Justice at page 25, about half-way down the page, where

Your Honour said:

The first question is whether the common law

of Australia recognizes a right to a speedy

trial separate from and additional to the

right to a fair trail. The second is whether

in this case the appellant's right to a fair

trial has been prejudiced by virtue of undue
delay amounting to an abuse of process.

Your Honours, in a sense - and when we come to the passages upon which we rely, this may not matter

greatly, but - the question before the Court was

one of fairness. Whether or not it was an abuse of

process was peripheral because the Court was of the

view, and there was support for this, that there is

a right to complain if a trial is being conducted

or prosecuted in an unfair manner, and while the

answer of the Court may be that an unfairness of a

trial does not inevitably lead to a permanent stay

because there may be better solutions for dealing

with it as, for example, in the case of delay by

expediting the hearing. It did not flow from that

that the Court was saying that in the case of an

abuse of the process of the sort we are here

concerned with permanent stay was inappropriate.

We would submit that each member of the

Court - and I say this subject to dealing in a

little depth with precisely what Your Honour

Justice Gaudron said - acknowledged that an abuse

of process in the sense of use for an ulterior

object could and, we submit, almost inevitably must

lead to a permanent stay for public interest

reasons. In the judgment of Your Honour the

Chief Justice, Your Honour refers, in the next
deals with the matters of delay and fairness and

paragraph from that to which I have just read, to

abuse in perhaps a more general sense, such as is

referred to in Connelly's case, and Your Honour

then goes over, and at page 29, at the bottom of

the page, Your Honour comes to the decision of

Moevao and, four lines from the bottom, Your Honour

said:

While the members of the Court focused upon

the concept of abuse of process, it is clear

Williams(2) 26 7/11/91

that they took a wide view of what might

constitute such an abuse.

Then Your Honour said:

The approach is best exemplified in the

judgment of Richardson J -

and Your Honour quoted part of what I have read to
Your Honours, and then said, on page 30:

In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the

processes preceding them are conducted fairly
and, secondly, that, so far as possible,
persons charged with criminal offences are

both tried and tried without unreasonable

delay. In this sense, fairness to the accused

is not the sole criterion when a court decides

whether a criminal trial should proceed.

For the reasons given, I agree with the approach of Richardson J as I have explained it. Bearing in mind his Honour's relatively broad view of what may amount to an "abuse of

process", I agree also with his explanation of the rationale for the exercise of the power to

stay a prosecution.

Then Your Honour quoted the last part, or the last

paragraph of the judgment, to which I have

referred. In fact, it is the second-last paragraph

of the judgment which I have read to Your Honours.

_Now, we would respectfully submit that there

is nothing in what Your Honour says there or,

indeed, says thereafter in the judgment which would

lead to the conclusion that Your Honour was in any

way derogating from the existence of a power in the

Court to grant a permanent stay where the abuse of

process is proceeding for an ulterior purpose.

And, indeed, what Your Honour picks up there as

reasons of public interest apply as much to such an

abuse as the particular complaint in Jago's case.

If I could ask Your Honours to go next to the

judgment of Justice Brennan, and at page 45
Your Honour, under the heading "Fair Trial and

Abuse of Process", discussed the power generally of

the Court and, at page 46, in the last paragraph on

the page, said:

The power which was acknowledged to exist in

Barton is a power which has a dual purpose:

"to prevent an abuse of process or the

prosecution of a criminal proceeding in a

Williams(2) 27 7/11/91

manner which will result in a trial which is

unfair when judged by reference to accepted

standards of justice".

On the next page, Your Honour dealt with a number

of obstacles in the way of a fair trial and, again

in the last paragraph on the page, said:

More radical remedies may be needed to prevent

an abuse of process. An abuse of process

occurs when the process of the court is put in

motion for a purpose which, in the eye of the

law, it is not intended to serve or when the
process is incapable of serving the purpose it

is intended to serve. The purpose of criminal

proceedings, generally speaking, is to hear

and determine finally whether the accused has

engaged in conduct which amounts to an offence

and, on that account, is deserving of
punishment. When criminal process is used

only for that purpose and is capable of

serving that purpose, there is no abuse of
process. Although it is not possible to state
exhaustively all the categories of abuse of
process, it will generally be found in the use

of criminal process inconsistently with some

aspect of its true purpose, whether relating
to the hearing and determination, its
finality, the reason for examining the

accused's conduct or the exoneration of the

accused from liability to punishment for the

conduct alleged against him. When process is

abused, the unfairness against which a

litigant is entitled to protection is his

subjection to process which is not intended to

serve or which is not capable of serving its

true purpose. But it cannot be said that a

trial is not capable of serving its true

purpose when some unfairness has been

occasioned by circumstances outside the

court's control unless it be said that an

accused person's liability to conviction is

discharged by such unfairness.

The contrast is drawn there. Your Honours, it is

taken up at the end of Your Honour

Justice Brennan's judgment in the last paragraph on

page 55, where Your Honour said:

The proceedings which the prosecution finally

got to trial were, so far as appears, intended

simply to administer the criminal law. There

was no abuse of process. It remains for the

prosecution to consider whether, in all the

circumstances, the trial should proceed.

Williams(2) 28 7/11/91

In the process of reaching that point, Your Honour did also, at page 49, about a third the way down the page, say:

However understandable the granting of a

permanent stay for delay causing prejudice

might be, the remedy cannot be supported

unless it would truly be an abuse of process

to try the case.

And then Your Honour Mr Justice Deane at

page 58 said, about six lines down, or a bit above

that:

The grant of such a stay in those

circumstances does not mean that the judge is

either stepping into the arena or assuming

what is properly to be seen as a function of

the executive government. It involves no more
than the discharge of the responsibility and
duty of a court to see that the process of law

is not abused in proceedings before it.

Then Your Honour quoted another passage from

Mr Justice Richardson's judgment:

"It is not a matter of the Courts' usurping or intruding on the functions of another organ of

government ... It is simply that the existence

of other sanctions cannot justify the

abdication by the Court of responsibility for

control over its own processes. When it comes

to actual or threatened abuse of the Court's

processes the Crown's position is no different in principle from that of any other litigant."

In Your Honour Justice Toohey's judgment at

page 71, Your Honour said, towards the bottom of

the page about ten lines up:

Where proceedings have been instituted for an

improper purpose (abuse of process), no remedy

is likely to be appropriate other than a stay

of the proceedings. No directions given by

the judge at trial can protect the accused in

that situation.

Now, Your Honours, we would submit that certainly

up to that point there is nothing to be gleaned

from Your Honours' reasonings which would support

the view that was taken up by the Court of Appeal.

In the passage in our written submission that we

refer to in paragraph 17, that there was a

principle that courts should restrict use of their
power to control abuse of process to those cases in
which the use of the power is the only way of

ensuring that an accused person is not deprived of

Williams(2) 29 7/11/91

a fair trial because of such abuse. We would

respectfully submit that as explained for reasons

of public interest, if anything, the dicta of Your Honours point in the opposite direction.

May I come then to Your Honour

Justice Gaudron's judgment at page 74, and it is

about half-way down the page, where Your Honour

said:

The terms, "frivolous", "vexatious" and

"oppressive", when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process such

that, in the interests of the administration

of justice, they should attract the grant of a

permanent stay.

And, Your Honours, we would emphasize what

Your Honour said there about the interests of the administration of justice.

But the terms "vexations" and "oppressive" may

also import a consideration of the justice of

fairness of the proceeding, those terms

signifying, in appropriate context,

proceedings which are "seriously and unfairly

burdensome, prejudicial or damaging" or are

"productive of serious and unjustified trouble

and harassment".

The above general considerations lead me

to think that, at least in civil proceedings,

the power to grant a permanent stay should be
seen as a power which is exercisable if the

administration of justice so demands, and not

one the exercise of which depends on any nice

distinction between notions of unfairness or

injustice, on the one hand, and abuse of

process, on the other hand.

And we would respectfully submit that that

proposition equally, and for the same reason,

should apply to an abuse of process of the sort

here involved in a criminal prosecution.	Your
Honour went on to say:

That having been said, the question arises

whether criminal proceedings are properly to

be seen as attracting the same general power

as exists in relation to civil proceedings,

including a power to grant a permanent stay if

the administration of justice so demands.

It was held in Barton v The Queen that a

court exercising criminal jurisdiction may, to

prevent unfairness or injustice, stay

Williams(2) 30 7/11/91

proceedings on indictment pending the holding

of committal proceedings. In that case

Gibbs A.C.J. and Mason J. left open the

question whether the power might be exercised

by the grant of a permanent stay, but said, by

reference to Connelly ..•.. and Humphrys that

"the view that there can be no injustice or

unfairness to an accused in putting him on

trial without reasonable grounds merely

because he will be ultimately acquitted and
because he can bring an action for malicious
prosecution has been emphatically rejected, as

indeed it should be".

Then Your Honour said:

When, in the words of Wilson J. in

Barton, there is "a fundamental defect which

goes to the root of [a criminal] trial, of

such a nature that nothing that a trial judge
can do in the conduct of the trial can relieve
against its unfair consequences", an accused
person is denied that which the law

guarantees, namely, a fair trial according to law. In such circumstances, it may fairly be

said that the administration of justice

demands that the proceedings be permanently

stayed. And when regard is had to the serious

nature of the injustice and unfairness

involved in requiring a person to have his or

her guilt or innocence determined in a

proceeding which is, ex hypothesi, unfair,

there can be no sound basis for denying that
the power of a court to control its own
process and proceedings extends to the grant
of a permanent stay of criminal proceedings if

the administration of justice so demands.

Now, Your Honours, it seems that it is what

Your Honour Justice Gaudron said in that passage

that is picked up and applied by the Court of

Appeal in its majority, as it were, across the

board and in particular to an abuse of process in

the sense of a prosecution for an ulterior object.

We would respectfully submit that Your Honour is

not really directing yourself to that question, but

are directing yourself to this other matter which

was in the forefront of the consideration in Jago's

case, namely the question of fairness, and in that

context, how fairness can be achieved by means

other than a permanent stay.

Your Honours, we submit that there is not to

be found in Jago a base for the conclusion of the

Court of Appeal, indeed the opposite. We have sought, in our written submission, starting at paragraph 12 and running through to paragraph 15,

Williams(2) 31 7/11/91

to summarize that contention, then to summarize, as

I have already indicated in paragraphs 16 and 17,

the base upon which the majority founded, and to

comment upon it in summary in paragraph 18 and put

the submission at paragraph 19, with the rhetorical

question at the end, "Why should the court stand

by, why should it be inhibited while its processes

are being misused?".

Your Honours, those are the reasons why we

would submit to Your Honours that the order in so

far as it affects the three appellants, and in so
far as it went to abuse of process, should be

overruled and the order of Mr Justice Smart

reinstated. In the course of writing the

submission, at paragraph 20 we refer to another

decision of the Court of Appeal, Rajski v Bainton,

which was handed down about three weeks after the

decision here in question, in which two members of
the Court came to the conclusion that the courts
had not hitherto held that abuse or attempted abuse
of process should deprive the guilty party of
substantive rights. It seems from the report,

Your Honours, that in that case no reference was

made to Jago and there is no discussion in the
majority judgment of the considerations of public

interest upon which we would here rely.

I did not propose to take Your Honours to it

in detail, but it exists and there is that

determination subject to that limitation. If

Your Honours please, those are the submissions that

we put in support of the appellants.

MASON CJ: Thank you, Mr Sheller. Yes, Mr Cassidy? You are

offering the outline of submissions, yes, thank

you.

MR CASSIDY:  Your Honours, the first matter we would wish to

add on page 1 is to refer to a passage in the

decision of Mr Justice Priestley at page 172 of the

appeal book, line 23. This is by way of

introduction:

Only one committal proceeding had taken

its ordinary course. All the others had been

stayed on the application of Dr Spautz's

opponents, on grounds other than that they had

no chance of success.

The one that took its course was dismissed, but it was dismissed on what would appear to have been a

wrong view of the law on the ground that the

proceedings, in the course of which the defamation

was uttered, were an occasion of absolute

privilege. In one of the cases Mr Justice Hunt

explored that question and held that the magistrate

Williams(2) 32 7/11/91

was wrong, or probably wrong in so doing, and

thereafter a fresh information was issued in an

attempt to have the proceeding relitigated on the

correct ground of privilege, which was qualified

privilege, and that was the Williams case that was

before Mr Justice Smart.

The first point that we would make, and really

only by way of preliminary, is that the

jurisdiction to stay proceedings as an abuse of

process is to be exercised only in exceptional

circumstances. We would refer the Court, without

reading from it, to what, I suppose, is the locus

classicus for that proposition, General Steel

Industries v Commissioner for Railways, 112 CLR 125

at 128. We would also refer, again without reading

them, to the following cases, some of which we will

be coming to in other connection later: Shackleton

v Swift, (1913) 2 KB 304 at 311 to 312; Rajski v Carson, 15 NSWLR 84 at 95; Hanrahan v Ainsworth, 22 NSWLR 96; and Hanrahan v Blewitt, an unreported

New South Wales case in the Court of Appeal on

11 June 1985 in the judgment of Mr Justice Hope at

page 8.

The only two cases we would wish to read from

in relation to this fairly simple proposition is a

passage from Goldsmith, (1977) 1 WLR 478, the
passage being at page 498 in the judgment of

Lord Scarman:

It is right, therefore, that to obtain before

trial the summary arrest of a plaintiff's

proceedings as an abuse of the process of the

court, the task of satisfying the court that a

stay should be imposed is, and should be seen

to be, a heavy one.

And we would only add that it becomes even

more heavy when what is sought is not a temporary

stay, for example as has been sought in some of the

cases where a stay has been sought to enable the

accused to have the benefit of committal

proceedings, but is a permanent stay.

The only other case that we would seek to

refer to, on this aspect, is Barton v Reg, 147 CLR

75, first of all commencing with the last four

words on page 94 in the judgment of the

Acting Chief Justice and Your Honour

Mr Justice Mason:

It has generally been considered to be

undesirable that the court, whose ultimate

function it is to determine the accused's

guilt or innocence, should become too closely

involved in the question whether a prosecution

Williams(2) 33 7/11/91

should be comrnenced •.... though it may be that

in exercising its power to prevent an abuse of

process the court will on rare occasions be

required to consider whether a prosecution

should be permitted to continue.

And also, on pages 115 to 116, in the judgment of

Mr Justice Wilson, where there is a quotation from

the Canadian decision of Potter v Reg:

"Whether or not jurisdiction exists to

stay as an 'abuse of process' a prosecution,
otherwise valid, was a question left undecided

by the Supreme Court of Canada in Reg v

Osborn. The existence of the jurisdiction had

been affirmed by the Ontario Court of Appeal in the Osborn case, and the same opinion was

expressed by the British Columbia Court of

Appeal in Reg v Rourke. The power is to be

used sparingly and only in the clearest cases.

In the latter case McIntyre JA said:

'It must be remembered that the

traditions of the common law have always

dictated free access to the courts by private

litigants, those charged with crime, and the

Crown. In the exercise of discretionary power

of the nature here under discussion the courts

must not be allowed to become, in addition to

judges of the cases presented to them, judges

of what cases shall be permitted to come to

them. The discretion to stay is one which

should be exercised in only the most unusual

cases and the case will be a rare one indeed

where its use can be justified' ...

'It is difficult and perhaps dangerous to

seek to give examples of what might constitute

oppressive conduct sufficient to warrant a

stay of proceedings. In Connelly v Director

of Public Prosecutions, and in Osborn it was a

arising out of the same event or, what is

sometimes referred to as splitting the

prosecution. In many of the cases it has been

delay on the part of the Crown in the

prosecution followed by a stay •.. and then

the institution of a new proceeding on a new
information after the stay.' ...

question of multiplicity of proceedings

Similar views were expressed in obiter

statements in four of the judgments in the

House of Lords in Director of Public

Prosecutions v Humphrys. It was stated in

that case that, though the power to stay

proceedings exists, its exercise would be

limited to rare and exceptional cases.

Williams(2) 7/11/91

And then lower down on that page, five lines from

the bottom:

But I agree that it is a power which is

reserved for use in exceptional cases.

MASON CJ:  Mr Cassidy, at the moment I do not understand how

this proposition manages to assist you in

establishing the correctness of

Mr Justice Priestley's approach. What is more, I

had not really understood that the proposition was

in contest between the parties.

MR CASSIDY:  No, I do not think it is. I am sorry,

Your Honour. If I am wasting time, I was simply

that the Court did appreciate - - -

seeking to lay the stage and to make sure that the

MASON CJ:	I think the message has been received.
MR CASSIDY:	I apologize, Your Honour. Might I then come to

what are the real points that we would seek to
raise. Fundamentally to Mr Justice Priestley's

reasoning was the recognition that the tort of abuse of process and the power to stay abusive

proceedings were quite different things and that

authorities on one were irrelevant to the other and

that Mr Justice Hunt in Spautz v Williams and

Mr Justice Smart founding on him in the present

case had telescoped and confused the two.

We would, with respect, submit that that

telescoping of two different principles flows

through into the arguments of the appellant. I

would not seek to read those parts of the judgment

of Mr Justice Priestley in which he developed that

proposition, but fundamentally they run from
page 145 and they also occupy, I think, the whole

of the appendix to his judgment which commences at

page 198.

Our first major point that we would put I

think develops from this, and it is that it first

requires us to adopt a short passage in the

judgment of Mr Justice Priestley at page 147,

line 4:

if the exercise of power was justifiable, it

can only have been on the basis of the court's

inherent power.

We would submit that it gets no justification from

a consideration of the tort of abuse of process,

but we would submit it can only be found in the

inherent power of the supreme court. We would

submit that the inherent power of a court is - I

Williams(2) 35 7/11/91

apologize for the word - inherently different from

the supervisory jurisdiction of a supreme court

over inferior tribunals.

The supervisory jurisdiction which is normally

exercised by use of what were the prerogative writs

or their modern equivalents is one thing, and abuse

of process another. The supervisory jurisdiction

is well described by Sir Frederick Jordan in that

beginner's pamphlet that in my day we learned at
the law school, the General Principles of the

Administration of Justice, at page 24.

BRENNAN J: There may be some of us who are not familiar

with it.

MR CASSIDY:  I think Your Honour, although perhaps not

familiar with the publication, will be more than

familiar with the principles. At page 24:

A superior court is entitled to exercise

a supervisory jurisdiction over all inferior

courts, not by way of appeal to determine

whether the inferior court has arrived at a

right decision, but in order to compel such
courts to exercise their jurisdiction and to
refrain from exceeding it, and to observe the

principles of natural justice. This

jurisdiction is exercised by means of the
prerogative writs of mandamus, certiorari and
prohibition. It was conferred on the Supreme

Court of New South Wales by 9 Geo IV Ch 83, s 3, which gave the court the same jurisdiction in New South Wales as the Courts of King's

Bench, Common Pleas and Exchequer at

Westminster had in England.

On the other hand, we would submit that the

justification of the inherent power of a court to

prevent abuse of process is quite different and is

and is always stated to be, or I perhaps should say

almost always stated to be, the power of the court
to control the abuse of its own processes.	In that

connection, we would refer to the very words used

by the appellants in paragraph 14 of the written

submissions:

Indeed an abuse of process of the Court is

something against which every Court is duty

bound to protect itself.

In paragraph 15 the word "itself" is again used and

in paragraph 12 where in the quotation from Moevao,

the third line of it, the phrase "its own

processes" is again used.

Williams(2) 36 7/11/91

In Commonwealth Trading Bank v Inglis,

131 CLR 311 at page 314 point 5, in the judgment of

Sir Garfield Barwick and Sir Edward McTiernan:

It is true that there are statements of high

authority referring to the power of the court
to prevent abuse of its process. But these
statements have been made in cases in which

the court was concerned with actions which had

been instituted in the court and were pending

therein.

In Rajski v Bainton, 22 NSWLR 125, at page 128 half-way between letter D and letter E:

A court apprised of the relevant facts will not permit its process to be abused.

And in Dowling v Colonial Mutual Life, 20 CLR 509, at page 515, it being one of the bankruptcy cases,

at point 8 or thereabouts:

On the other hand, there are decisions of high

authority in which it has been laid down that

the Court ought in some cases to refuse to exercise its power on the grounds that its

interposition is sought for some collateral

object extraneous to the purpose of the

insolvency law.

There are three cases referred to in the judgment of Mr Justice Priestley in this case at page 149,

which he relies for the proposition which he begins

at the foot of page 148:

It has been accepted that this court has power

to prevent abuse of process in inferior courts

and tribunals.

We would make these submissions about those three cases. They were not, I am afraid, on our list but

John Fairfax v McRae referred to there was not an
abuse of process case at all.	It was a contempt of

court case and, we would submit, offers no

authority for the proposition put by

Mr Justice Priestley. The other two cases

certainly were abuse of process cases. Herron was

one of the Chelmsford Hospital series, disciplinary

proceedings before a medical tribunal against a

doctor, and it was sought to stay those proceedings

on the grant of gross delay.

We would first submit that disciplinary cases

may be placed in a different category or

alternatively we have to submit that Herron should

be overruled by this Court. Gorman v Fitzpatrick

was a criminal case in which again it was a delay

Williams(2) 37 7/11/91

case, and again a decision of the Court of Appeal

of New South Wales of Mr Justice Kirby,

Mr Justice Samuels and Mr Justice Priestley. We

must submit that that case should be overruled by

this Court. We make the point that - yes, we must

submit that that case is wrong.

BRENNAN J: This is an objection to the jurisdiction?

MR CASSIDY:	Yes, I suppose it is, Your Honour.
BRENNAN J:	Is any such objection taken in the courts below?

MR CASSIDY:  No, Your Honour. The appellant in the court

below, the respondent here, was in person.

BRENNAN J:  The consequence is that if this argument be

upheld the matter just goes back, I suppose, to the

courts from which it came, or the courts in which

the proceedings are pending, and the argument has

to come back all the way again.

MR CASSIDY:  We would submit not, Your Honour. If it is a

good objection to jurisdiction there is not much

point in sending it back to the Court of Appeal, we

would say.

BRENNAN J:  It would not go back to the Court of Appeal. I

am saying that the whole problem rests with the

local court where the application can be made for a

stay, and if the stay is refused an appeal can be

brought, and we can go through the whole process

again.

MR CASSIDY: Might I come to that a little later,

Your Honour, for this reason: that there is

dispute as to whether a local court dealing with

committal proceedings has jurisdiction to grant a

stay itself. I was going to come to that in

connection with the necessity for this remedy

before the supreme court. There are a series of

cases - Carson is one of them - and I will be

referring the Court to them, in which it is clear

that that is a very live question, one that I would

suggest the present is not an appropriate vehicle

in which to have it decided.

GAUDRON J:  Mr Cassidy, does not that submission that you

are making not overlook the provisions of section

23 of the Supreme Court Act?

MR CASSIDY:	My answer to that, Your Honour - and section 23 was relied on in the Herron v McGregor case - is,
it does not because that section speaks of
necessity and we would submit that for reasons that will later appear and particularly for the reasons
given by Mr Justice Priestley as to why there were

Williams(2) 38 7/11/91

all sorts of other remedies apart from permanently
staying the proceedings as an abuse of process,

there was no necessity here.

GAUDRON J:  If you take the view that the local court has no

power to grant a stay and the case was properly one

to be stayed, would not section 23 apply?

MR CASSIDY: Well, we would submit, no, Your Honour, because

there were plenty of other remedies apart from

stay.

GAUDRON J: Yes. No, but - you came correctly to the view

that it was properly a case to be stayed, leaving aside the other remedies, assuming for the moment that there were none, or are none?

MR CASSIDY:  Yes, we would have to agree that there would

then be a necessity and that section 23 could

apply.

GAUDRON J:  Yes. So ultimately then the question is whether

this case was appropriately stayed?

MR CASSIDY:  Yes, certainly, and I will come shortly to

that, although I would wish to put a couple more

points on this point first. Barton v Reg,
147 CLR 75, to which I think reference has already

been made and which I will be referring to later is

an example of proceedings which were before the

supreme court and there was an application for a

stay. We would point out that the cause of action

for damages for abuse of process does not depend on

this point. That will, of course, be pursued in

any court of competent jurisdiction no matter in what court the allegedly abuse of process issue.

The case which would appear to establish that

a magistrate has no power to stay committal

proceedings is Grassby v Reg, 168 CLR 1, at page 6,

in the judgment of Mr Justice Deane, the paragraph

that commences about the middle of the page:

If, in the course of committal proceedings, a serious question emerges about whether a prosecution of the accused in the Supreme

Court would be stayed by that court as an

abuse of its process, the magistrate hearing

the committal proceedings is, in my view,

neither obliged nor entitled to disregard that

question in determining whether a committal

order should be made. If the magistrate is of

the view that, having regard to all the

evidence, a prosecution in the Supreme Court

would be permanently stayed as an abuse of the

process of that court, he or she would, in my

view, necessarily be of the opinion that a

Williams(2) 39 7/11/91

jury would not be likely to convict the defendant of an indictable offence if a

committal order were made.

And, it would follow, obviously, the magistrate

would not commit.

McHUGH J: What about a case like Miller v Ryan, where there

were a set of charges brought and then another set

of charges brought and the prosecution refused to

elect? Mr Justice Rath held that the magistrate

had jurisdiction to stay proceedings and he also

held that the supreme court had.

MR CASSIDY:  And Mr Justice Priestley in the present case

would agree that the magistrate can force, by

asking questions, the prosecution to elect or to

give particulars or to do that sort of thing.

McHUGH J: But in Miller the prosecution refused to elect.

MR CASSIDY: Well, I am only too happy if the magistrate

could stay, really, because that disposes of the

section 23 of the Supreme Court Act argument.

McHUGH J: But what is your submission? Does the magistrate

have power to stay for abuse of process in

committal proceedings, generally?

MR CASSIDY:  My submission is that there is dispute about

it, in a series of cases the names of which I will

give the Court and to one of which I will refer the

Court.

McHUGH J: But what is your submission?

MR CASSIDY:  My submission is that he probably does have

power. The major case on the subject is Connor v

Sankey, (1976) 2 NSWLR 570, at 629D:

The decision in Ex parte Cousens; Re
Blacket has stood for thirty years.	It was

applied by the Full Court in Ex parte Lyndon;

Re Cooper and, more importantly, was

re-affirmed by the Court of Appeal when the

Court was invited not to follow it in Ex Parte

Coffey; Re Evans. In the latter case, in the

joint judgment of Herron CJ and Holmes JA it

is stated " ... we think the decision in

Cousens' case should be supported, and that it

correctly states the law."

Moffitt JA said "The basic and central

matter decided by Ex parte Cousens; Re

Blackett is that the court in exercise of its supervisory powers under the prerogative writs

will not interfere with the decision of the

Williams(2) 40 7/11/91

magistrate conducting an inquiry either into

his decision to commit or not to commit or into his decision upon or his declining to

decide any equivalent or related question at

an earlier stage of the proceedings whether it

be based on factual or legal

considerations ..... ! see no valid reason why

we should not follow Ex parte Cousens.

Other cases, apart from those referred to there, which might be regarded are Sankey v

Whitlam, 142 CLR 1 at pages 22 and 83.

McHUGH J:  None of these cases deal with the question of

whether the magistrate has got the power to deal
with the power of the supreme court to issue

prerogative writs on that consideration.

MR CASSIDY:  Yes, they do, Your Honour. Might I pass from

that submission to one getting closer to the

judgment of Mr Justice Priestley, and I want to

develop there three separate submissions. First,

the point that Mr Justice Priestley founds upon, I

would suggest, and that is that if purpose is

relevant there must have been some act of the

prosecutor, or plaintiff, which deprived the

defendant of a fair trial to an extent that cannot

be corrected by, for example, a discharge of one

particular jury or a direction by the trial judge. Secondly, that purpose or motive of the

prosecutor or plaintiff is not relevant to this

sort of application but that if it is there must be

two distinctions drawn and one is that all that the

court must be interested in in an abuse of process

case is the sole and not merely - it must be a case

in which there is only one purpose and that

improper. It is not enough that it be one of a

number of purposes, even though it may be the

predominant purpose. Following from that - or

perhaps not following from it - the proposition

that it must be the immediate and not an indirect

or the first and not a secondary purpose that is

improper.

BRENNAN J: What is the proposition, sole purpose or -

MR CASSIDY: Two separate propositions. A predominant

purpose is not enough, it has to be the sole
purpose. And, secondly, that where there are two
purposes connected in series, as it were, it has to

be the immediate purpose.

McHUGH J:  I do not follow that. If it is the sole purpose,

how can there be - - -

Williarns(2) 41 7/11/91

MR CASSIDY:  I am putting them as two separate and two

alternative propositions, Your Honour. First, that

it is not enough to show that the predominant

purpose was improper if there is some other purpose

that was proper. And, secondly, that even if that

proposition be rejected it is sufficient if the

immediate purpose is proper even though an ultimate

purpose, down the track of what use you want to

make of the judgment, is improper.

McHUGH J: What if the improper purpose is the immediate

purpose?

MR CASSIDY:  If the only purpose - if the only immediate

purpose is improper then there would be

jurisdiction to grant the stay.

McHUGH J: What do you mean by "the only immediate purpose"?

MR CASSIDY:  If the immediate purpose was not to obtain a

judgment at all but to blackmail the defendant into

doing something, and perhaps the intention was

having failed in the blackmail attempt then to drop

the prosecution, then that would be the sole and

the immediate purpose and it would be improper.

BRENNAN J: What do you say of a purpose in this case: to

blackmail the defendants in the proceedings into

agreeing to the terms of settlement which your
clients sought, but if they did not agree, then to

press on with the prosecutions and get whatever

benefit he could?

MR CASSIDY: Well, I do not agree that that was the purpose

that existed in that case, or that that was the

purpose that was found either by the trial judge or

by the majority in the Court of Appeal.

BRENNAN J:	I was putting it to you hypothetically.
MR CASSIDY:	If that were found to be the purpose, I think I

would have to agree that that was an improper

purpose and could justify a stay; whether a

permanent stay, is another matter.

BRENNAN J:  Even though the purpose down the track is to get

whatever relief is available there?

MR CASSIDY:  I am sorry, I did not quite follow what

Your Honour was putting.

BRENNAN J: The primary purpose in instituting the

proceedings is to bring them all to heel, to make

them agree to his terms. But if they are not going

to agree to his terms, then he is going to press on

with the litigation in order to get whatever relief

he can.

Williams(2) 42 7/11/91

MR CASSIDY:  I misunderstood Your Honour's use of the word

"primary". I would not agree that that was a

primary purpose. It might be the first purpose in

point of time, but that is the purpose of any court

proceedings surely. In any civil proceedings one

is only too happy to take a settlement without

proceeding to verdict.

McHUGH J: But in this case when you read the

correspondence, your client does not even seem to

have had any purpose of wanting to obtain a

conviction - far from it. That was the last thing

he wanted.

MR CASSIDY:  That may have been so in the period prior to

1983, but thereafter his purpose was to obtain a

conviction.

McHUGH J: Well, I am not sure that Mr Justice Smart

accepted that, did he?

MR CASSIDY:  Mr Justice Smart - I will take Your Honours to

it later - did find that some of his purposes were

proper; that although his predominant purpose was

improper, he was actuated by proper purposes as

well.

MASON CJ:  Mr Cassidy, it may be convenient to adjourn now

and we will take this up at 2.15 pm.

MR CASSIDY:  May it please Your Honour.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Cassidy?

MR CASSIDY: Might I come now to the proposition that there

must be evidence that acts of the prosecutor have

deprived the defendant of a fair trial before the

abuse of process principle can be used to stay the

proceedings and that the device of a permanent stay

of proceedings can only be used if that is the only

way in which a fair trial can be ensured.

Mr Justice Priestley makes the point clearly

and succinctly at page 142 of the appeal book.	At
line 9 he recognizes that:

Williams(2) 43 7/11/91

This point is basic to the abuse of process

appeals and one on which I disagree with

Smart J. A litigant's purpose may be improper, and that may in a sense mean that

proceedings instituted because of that purpose

are an abuse of process, but it does not in my

opinion follow that in the absence of some

improper act, any consequence should follow,

let alone a permanent stay. I will explain

why I think this later.

Might I mention in relation to the stay application

and the tort remedy that of course, when one is

dealing with the tort, it being an action on the

case, there must be damage before the plaintiff can

have his cause of action. It is not, we would

submit, strange to suggest that there must be an

effect and that there must be an act and that there

must be something more than a mere purpose.

It is also perhaps relevant to point out that

many of the cases referred to by my friend in

drawing the distinction between malicious

prosecution and abuse of process, the distinction

is between the initiating process, which you have

to win before you can bring your action based on

it, and mean process, such as ca re in the Varawa

case, which is ancillary to the initiating process,

in which event you do not need to have succeeded in

the suit.

What is being sought to do in this type of

proceeding is not to stay some ancillary process
but actually permanently to stay the whole
proceedings.

At the foot of page 142 Mr Justice Priestley

goes on, at about line 17:

The approach adopted by Smart J meant that he

needed to go no further than his finding of

predominant improper purpose. He did however

add to this finding the further finding that

Dr Spautz had other purposes in instituting

the various criminal proceedings, most of

which were also improper. Having made the

principal finding of predominant improper

purpose, Smart J did not need, on the approach
he was taking, to state, and did not state,
what the purposes were which he found existed
but were not improper. The further improper
purposes he found were those of vindication of

reputation and collection of material for

research Dr Spautz said he was conducting into

corrupt practices in Australian institutions.

Williams(2) 44 7/11/91

I pause to say that it must be wrong to suggest

that vindication of reputation is not one proper
purpose for a criminal libel action because there

is not that great a distinction between criminal

libel and civil libel. Then if I may go on to
page 158 where His Honour, at line 21, sums up what

he sees to be the position, and which we submit is

correct:

The passages I have summarised seem fairly

clearly to support the conclusion I earlier

said I derived from them: supervising courts

should restrict use of their power to control

abuse of process to those cases in which use

of the power is the only way of ensuring that

an accused person is not denied a fair trial

because of such abuse.

It is trite to say that the categories of

abuse of process are not closed. Indeed, I am sure

the appellant would agree with that proposition.

But if they are not closed then Jago v District

Court should be seen as just one example of the way

in which abuse of process can be used as a stay
mechanism. If it is seen as an example then there

is no magic in the fact that it was a delay case

and that this is another sort of case, and the use

that Mr Justice Priestley made of Jago must be

justified.

McHUGH J: Can I just take you up on this? The whole

purpose of this doctrine of abuse of process is to

prevent the court's process being used to obtain an

ulterior end. Supposing in this case Dr Spautz

succeeded in what he set out to do, what would have

happened? The court's process would have been

abused. Nobody would have been convicted of any

offence. The process would have been started with
the intention and would have succeeded in obtaining
something that the process was not intended to

achieve.

MR CASSIDY:  Your Honour means if he had achieved a

rapprochement with the university and got his job

back?

McHUGH J: Well, on the assumption, against you for the

moment, that his predominant purpose was to get

reinstatement, and if he had obtained that that

would have been the end of the criminal proceedings

then it can be fairly said that the process has

been abused.

MR CASSIDY: But, what Dr Spautz believed, rightly or wrongly, was that he had been victimized and

libelled by Professor Williams and that it was the

result of that libel that had cost him his job.

Williams(2) 45 7/11/91

Now if you start from the proposition of that being his belief, rightly o~ wrongly, what was improper

against him prosecuting Professor Williams for

libel and in the course of those proceedings,

either while they were going on or after he had

succeeded - - -

McHUGH J: Well, if his purpose was to prosecute a criminal

act, well and good - if that was his predominant

purpose, but you have this finding of fact against

you.

MR CASSIDY: Well, I have not yet come to deal with the

question of whether predominant purpose is enough,

but I will come to attempt to persuade the Court

that provided any one of his purposes was a proper

one, and in the case of criminal libel I would

suggest either to get a conviction or at least a

finding of guilty, or perhaps in the case of

connnittal proceedings, merely to have the inquiry

held so that the Attorney-General could make up his

mind whether to lay an indictment or present an

indictment or not, or alternatively to vindicate

his reputation. They would be proper purposes.

McHUGH J:	But the civil action to enable him to vindicate his reputation, the very fact that criminal
proceedings for defamation are launched innnediately
gives rise to at least a suspicion that they are being used for some purpose other than the
vindication of reputation.
MR CASSIDY:	Or perhaps a suspicion that they are being used

for some purpose in addition to that, not necessarily, I would suggest, other than.

MCHUGH J: Yes.

MR CASSIDY: Well, it is going to be ultimately my

submission that, provided it is only in addition

to, that that does not matter.

MASON CJ:  Mr Cassidy, what authority do you have to support

your proposition that an improper act is necessary,

in the sense of improper use of the process apart

from having a purpose that is any proper purpose.

MR CASSIDY:  I would rely on Jago, to start with,

Your Honour.

MASON CJ: Well, putting Jago to one side.

MR CASSIDY:  And Barton, Your Honour, Barton v Reg, 147 CLR.

MASON CJ: But that rather depends, does it not, on the

inability to go behind the prerogative decision by

the Crown to institute the proceedings?

Williams(2) 46 7/11/91

MR CASSIDY:  I do not know that it depends on it, Your

Honour. There would not have been any need for it, had one been able to go behind the prerogative

decision of the Crown. But it was the inability to

go behind the Attorney-General's discretion that

produced the need for an abuse of process approach.

MASON CJ: Yes, but we are not concerned with that here.

MR CASSIDY:  No.

MASON CJ: Can I just refer you to Mr Justice Priestley's

appendix, at page 219 and the following pages.

Now, as I understand His Honour, he is setting out

in that part of the appendix the authorities as he

views them, that support the proposition that you

need improper use of the process as well as an

improper purpose.

MR CASSIDY:	Yes, Your Honour.
MASON CJ:	He relies in particular on what might be

described as paragraph 4 in Mr Justice Slade's

judgment in Metall and Rohstoff, on page 220, and

then he relies in particular on a decision in the

United States, Rosemont Enterprises v Random House,
which is dealt with in some detail on pages 221 to

223, and then there is a reference on page 223,

about line 22, to other United States authorities.

Now, apart from those authorities, have you got

anything else to support the proposition?

MR CASSIDY: No, Your Honour, I have not. Could I then,

Your Honour, come to the next series of points

which relate to the question of purpose, first of

all to make the point that purpose on its own is

not sufficient. It may be important to look at the

purpose for deciding how to exercise the discretion

once one gets past that threshold, and then to look

at the question of whether a predominant purpose is

enough and whether an indirect or secondary purpose

is enough.

Might I first make the point, Your Honours,

that in history there are many cases in which the

purpose of a proceeding has not been that for which

the proceeding was designed, and yet no one has

thought to take proceedings to stay that proceeding

on the ground of abuse of process.

In the passage from

Sir James Fitzjames Stephen cited by

Mr Justice Priestley at page 152 line 28, there

occurs a summary of that:

no stronger or more effectual guarantee can be

provided for the due observance of the law of

Williams(2) 47 7/11/91

the land, by all persons under all

circumstances, than is given by the power,

conceded to every one by the English system,

of testing the legality of any conduct of

which he disapproves, either on private or on

public grounds, by a criminal prosecution.

Many such prosecutions, both in our days and

in earlier times, have given a legal vent to

feelings in every way entitled to respect, and

have decided peaceably, and in an authentic

manner,. many questions of great constitutional

importance.

Might I give some examples, the first of which I would suggest is the trial of Queen Caroline.

1ne would suggest that it was not really brought

ith any desire of bringing the lady to justice,

.1t rather as a convenient way in days before

~ivorce of getting rid of an unwanted wife.

Might I next mention Sankey v Whitlam. One

would suspect that the reason for that prosecution

was no desire to see any of the defendants

imprisoned or otherwise punished~ it was entirely

political. The old fiction of the casual ejector

was used not for the purpose for which the process

was there, but as a convenient way of bringing

ejectment suits before a court which would not

otherwise have had jurisdiction.

Another fiction: that which was used to get

jurisdiction in the Exchequer Court in England,

where one invented a fictitious debt to the Crown.

All those are cases in which, if you had been

thinking along abuse of process lines, one might
well have said that they were not cases brought for

the purposes for which the remedy was designed. In Clyne v The New South Wales Bar Association

referred to by my friend, no one sought to take

proceedings to stay the proceedings against Mr Mann

on the basis that they were an abuse of process,

because they were brought for an improper purpose.

What was done was that after they were over,

proceedings were taken for misconduct against

counsel who had prosecuted them for an improper

purpose and who, as I recall, had opened on facts

that he knew he could not prove.

And finally, the example given by my friend in

the course of the leave application at pages 4 and

5, of a criminal prosecution brought for the

predominant purpose of having someone removed from

office. Now, what can be wrong with the use of the

law of the land to prosecute someone for a crime

merely because a secondary result of it and,

indeed, the thing which you really bring the action

Williams(2) 48 7/11/91

for, is designed to get a conviction which will

exclude someone from a statutory office which is

disqualified by conviction.

McHUGH J: But may not the distinction be that there is

nothing improper provided you intend to prosecute

to conclusion, come what come may.

MR CASSIDY:  Yes.

McHUGH J: But there is a distinction when that is not your

intention at all and you are quite ready to abandon

the prosecution if the ulterior or collateral

objective is achieved.

MR CASSIDY:  Your Honour, with respect, that cannot be

right. Take, as another example, larceny. Say one

brings a private prosecution against someone for

stealing a picture of some particular value. What

would be wrong with dropping the prosecution if the

accused returned the article?

McHUGH J: It is a question of the intention at the

beginning. If you launch it with no intention of

finishing if you can get the article back, then it

may be that that is an abuse of process.

MR CASSIDY: Well, Your Honour, the furthest I would go to

agree with Your Honour would be, if you launched

the prosecution with no intention of carrying it
through if you got the article back and also no

intention of carrying it through if it ultimately

became obvious you were not going to get the

article back. I think I might go along with

Your Honour that far. But then there would not be

any intention at all to prosecute, or to complete

the prosecution.

BRENNAN J: But is not the problem that criminal proceedings are brought for the purpose of vindicating a public interest?

MR CASSIDY:  Yes, Your Honour.

BRENNAN J: And if they are brought for the purpose of

achieving a private interest, then you are in the situation where it is for a purpose for which the

remedy was not designed.

MR CASSIDY:  Your Honour, if that is the only purpose, but

there must be criminal proceedings that are brought

for vindicating a private purpose.	I have given
the example of larceny proceedings.

BRENNAN J: That seems to me to be a good example where, if

you do not choose to sue in detinue or trover but

you want to prosecute somebody for it, but yet the

Williams(2) 49 7/11/91

purpose of the prosecution - because it must be

something attributed to the action itself - is to

achieve private remedy, that may well be a case

where there is an abuse of process.

~

MR CASSIDY:  I would not seek to go back on what I said to

Mr Justice McHugh, that if that is the only

purpose, but if you prosecute intending to pursue

that prosecution but willing to drop it if your

goods are returned or if, in the case of libel, you

get an apology, in my submission that could not be

said to be an improper purpose unless, as I say,

you intended willy nilly to drop it before you got

to the conclusion, whether you got your goods back

or got your apology or not.

BRENNAN J: It seems a large step, does it not, to say that

you can take a process which is intended to deprive

a person of his liberty and which, even at an

interlocutory stage, may result in a person being

deprived of his liberty by being held to bail, for

example, or incarcerated on committal, in order to vindicate a private interest. That is putting the

majesty of the law which is there for the purposes

of the State and the public to a private purpose.

That is a big step, Mr Cassidy.

MR CASSIDY:  But where I disagree with Your Honour is that

if you wish to prosecute and get a conviction or a

finding of guilt, that is not necessarily turned

into an improper purpose merely because at the same

time you will be protecting a private interest.

BRENNAN J: No.

MR CASSIDY: It is ultimately, I suppose, our submission

that on the findings of fact here, particularly as

interpreted by Mr Justice Priestley, it did not go

that far.

DEANE J: A lot of wives who take proceedings for protection

from physical abuse by getting their husbands bound

over would be guilty of abuse of process,

apparently on that approach.

MR CASSIDY:  Yes, Your Honour.

DEANE J: Because they never want a conviction.

MR CASSIDY:  They do not ever intend their husband to be put

in gaol.

DEANE J: Or convicted.

MR CASSIDY:  Or convicted. Indeed, one suspects that they

often take such proceedings with the intention of

Williams(2) 50 7/11/91

keeping them hanging around as long as possible and

not actually ever proceeding to a hearing.

BRENNAN J: Are there any other proceedings that could be

taken with a view to having a husband bound over?

MR CASSIDY: Well, one could take proceedings for assault as

opposed to proceedings for apprehended violence,

which I gather Mr Justice Deane was speaking of.

But I do not know that it matters whether there are

other proceedings that were available or not.

McHUGH J: Well in that class of case the wife intends to

prosecute, does she not, until conviction - until

she gets him bound over. She might not want to do

it.

DEANE J:  She normally intends to just get him to court

where it does not go any further.

MR CASSIDY: Well another example, perhaps, coming from the

same era - I do not think it happens any longer

because we have improved the laws - but when the

police picked up drunks in the parks and around the

streets and put them away for the evening, they

never intended to prosecute, they were let out on

bail when they had sobered up and the next morning

they were all called over at half past nine at
central court of petty sessions and none of them

ever appeared until the next night when they were

all drunk again.

BRENNAN J: Practices vary from State to State.

MR CASSIDY:  But there were certainly those cases in which

the laws for public morality and public behaviour -

the criminal laws were misused. It has been

referred to, I think, as the overreach of the

criminal law, and it may still occur, perhaps, in

relation to some minor drug offences. But, again,

it would not be suggested that there was an abuse

of process in those cases.

Might I then come to the proposition that the

improper purpose must be the sole purpose and that

the finding of Mr Justice Smart that there were
other purposes, although he did not define them, is

sufficient to deprive the plaintiff in the present

proceedings of the right which it sought. I would

wish to refer to Dowling v Colonial Mutual Life

Insurance Company, 20 CLR 509, and I think it has

already been referred to by my friend.

MASON CJ:  You did refer to this earlier, did you not,

Dowling's case?

MR CASSIDY:  Yes, I did and - - -

Williams(2) 51 7/11/91

MASON CJ: And I think Mr Sheller referred to it.

MR CASSIDY:  Yes, I did, in another connection. The passage

which Mr Sheller referred to was on page 522, in

the judgment of Sir Isaac Isaacs, and I only wanted
to emphasize there that in the third line the very

important three words "bvth circumstances
concurring", but my real purpose was to refer to

the passage on page 525 in the judgment of

Mr Justice Powers:

It is clear that the Society instituted

bankruptcy proceedings in order, after the

petition was granted, to ascertain, presumably
by examinations in insolvency under the Act,

who was behind the appellant in publishing

defamatory matter about the company and its

business. There are cases in support of the

view that proceedings instituted with such an

ulterior motive would be considered an abuse

of the process of the Court. After carefully

considering King v Henderson I have come to

the conclusion that the indirect motive proved
in this case does not come within the words
"fraud, or abuse of the process of the Court,"

necessary, after the decision in that case, to

entitle the appellant to succeed. The

proceedings were based on a lawful debt, and

it was bona fide intended to proceed with the

petition. The proceedings were not therefore

instituted to obtain any unfair or other

advantage before the insolvency. Whatever

information the Society wished to obtain after

insolvency could only be obtained, if at all,

in accordance with law, in proceedings under

the Insolvency Act.

There then the society was held by the

majority entitled to take bankruptcy proceedings

though it was motivated after it had obtained the

sequestration order to examine the bankrupt and

though that was the primary - primary is the wrong

word - that was the real reason why it took the

bankruptcy proceedings. Now here we would submit

the position is the same. Dr Spautz did intend to

connnence these proceedings and to prosecute them.

What secondary use he intended to make of them

afterwards was not sufficient to deprive him of his

right to go to court and have these proceedings

ruled upon.

My friend referred to Varawa v Howard Smith

and we would make the point that it is that that

was a case of mean process, a ca re, and not a

matter of initiating process. There may well be a

difference as far as present purposes are concerned

between the process which connnences the whole

Williams(2) 52 7/11/91

proceedings - there certainly is as far as tort is

concerned - which can only be pursued by way of a

tort claim after the whole proceedings have been dismissed, and the tort particularly of abuse of process.

The next point that we would make is that the proposition of ours that the purpose must be the

sole purpose ties in quite neatly with another area

of the law which has been pronounced on by this
Court quite recently and entirely, with respect, authoritatively, and that is the question of legal

professional privilege.

The British courts, as Your Honours will

recall, have regarded predominant purpose as

sufficient to confer legal professional privilege.

This Court in Grant v Downs, and following it in
National Employers' Mutual v Waind, opted for a

test of sole purpose. I do not know that I need to cite anything very much, but in National Employers'

Mutual v Waind, 141 CLR 649, it is probably enough to read a passage from the judgment of Your Honour

the present Chief Justice at page 656. It will be

recalled that Sir Garfield Barwick dissented:

This conclusion, so the appellant

contends, is by no means fatal to its

argument. If, on the facts, the documents are

brought into existence for the dual purpose of

deciding what it will do and for use in

litigation by legal advisers when appropriate,

that purpose should be considered as one

purpose which, including as it does submission

to legal advisers, would attract the relevant

head of privilege. That is the argument.

Unfortunately for the appellant, it is an

argument which runs headlong into Grant v

Downs. As Glass J observed in the Court of

Appeal when he applied the remarks of Stephen,

Mason and Murphy JJ in Grant v Downs:

"If the purpose which actuates the party

who commissions documents is not single but

multiple each must be identified. Unless all

of them fall within the protected group of

purposes namely submission to legal advisers

or use in litigation, no privilege attaches."

The argument is not only inconsistent with the

sole purpose test enunciated •••.. it is also

inconsistent with the dominant purpose test

favoured by Barwick CJ, and in my view it

fails to satisfy the test proposed by

Jacobs J - Does the purpose of supplying the

material to the legal adviser account for its

existence? It is also at variance with the

Williams(2) 53 7/11/91

speech of Lord Cross of Chelsea (with whom

three other members of the House agreed) in

Alfred Crompton Amusement Machines.

Why should the court adopt a solA purpose test in

deciding what documents are not to be produced

because they were produced for the purpose of legal

action, and adopt a dominant purpose test for the

purpose of deciding on this question of abuse of

process?

The next point is that even Mr Justice Smart

recognizes that the isolation of one purpose and

the categorization of it as predominant or not is

often a difficult task - page 42 line 22 of the

appeal book:

It is difficult to ascertain, in any given

situation, a person's purpose in commencing an

action. People are complex, and commonly act

for a number of interrelated purposes, none of

which can be simply identified as predominant.

Indeed, often the person committing the act

will not be able to state his main purpose in

so doing.

And in saying that, Mr Justice Smart adopted

the words of the majority in Goldsmith v Sperrings.

I think this passage may already have been referred

to by my friend. It is (1977) 1 WLR at page 498

where Mr Justice Scarman says:

I dissent from Lord Denning with diffidence

and very great respect: but at the end of the

day, notwithstanding the persuasive eloquence

of Mr Comyn for the appellants, I take a

different view of the facts from that which

the Master of the Rolls has taken. As I see

it, this appeal .•..• turns on a question of

fact •••.. If Sir James Goldsmith's purpose in

initiating or pursuing his actions against the

secondary distributors be to destroy "Private

Eye", namely, to use his wealth so as to

suppress it, he is abusing the process of the

court. Neither wealth nor power entitles a

man to censor the press.

That, I think, is where my friend stopped reading.

If, however, his purpose be to vindicate and

protect his reputation, the use of all

remedies afforded him by the law for that purpose cannot be an abuse of the court's

process. It is never easy to determine a

man's purpose. Ordinarily this task of

judgment is tackled only after trial.	In the
instant case, we are being asked to pass

Williams(2) 54 7/11/91

judgment on the respondent's purpose upon a

preliminary application, the effect of which,

if successful, will prevent him bringing to

trial actions in each of which (it was

admitted in argument) he is pleading a cause

of action recognised by the law. It is right,

therefore, that to obtain before trial the

summary arrest of a plaintiff's proceedings as

an abuse of the process of the court, the task

of satisfying the court that a stay should be

imposed is, and should be seen to be, a heavy

one.

And we would submit that it is a task which the

Court should not gratuitously set itself.

The next authority to which we would refer on this aspect is Rajski v Carson, (1988) 15 NSWLR 84. That was one of a series of cases brought by

Dr Rajski against various people involved with a company, Tectran, and this particular one was

against a partner of Tectran's solicitors. At page

93, letter B:

But purposes, like motives, can be complex.

This truism about complex human conduct has

been recognised in many cases. So has the

difficulty of determining one "motive" or

"purpose" for a particular objective of the

law. In Crofter Hand Woven Harris Tweed Co

Ltd v Veitch, the House of Lords, in a

Scottish appeal, had to determine the character of the objectives of the officials

of a trade union. Had they combined together

with an object to do harm to an employer

(which was unlawful) or simply to exercise

their own just rights (which was not)? The

case is an instructive one because the

conspiracy alleged, like libel,

developed ••.•. in the Court of Star Chamber.

But the difficulty which dogged the courts was

that of designating the "object" or "purpose"

of the combiners. The Lord Chancellor said:

"Next, it is to be borne in mind that there

may be cases where the combination has more

than one 'object' or 'purpose'. The combiners

may feel that they are killing two birds with

one stone, and, even though their main purpose

may be to protect their own legitimate

interests not-withstanding that this involves

damage to the plaintiffs, they may also find a

further inducement to do what they are doing
by feeling that it serves the plaintiffs

right. The analysis of human impulses soon

leads us into the quagmire of mixed motives,

and even if we avoid the word 'motive', there

Williams(2) 55 7/11/91

may be more than a single 'purpose' or

'object'. It is enough to say that if there

is more than one purpose actuating a

combination, liability must depend on

ascertaining the predominant purpose. If that

predominant purpose is to damage another

person and damage results, that is tortious

conspiracy. If the predominant purpose is the

lawful protection or promotion of any lawful

interest of the combiners (no illegal means

being employed), it is not a tortious
conspiracy, even though it causes damage to

another person.

The important point, we would suggest, is that here

there is no finding at first instance or by the

intermediate court of appeal that there was no

purpose other than the improper one.

Mr Justice Smart concludes at 40 point 9 that:

From the newsletters written by Dr Spautz

pre-1984, and from the transcripts of evidence
before Hunt and Yeldham JJ, it is possible to

discern that vindication of his reputation was
an important purpose of Dr Spautz in

instituting proceedings. This was not found

by their Honours to be his dominant purpose,
but it was, in my opinion, interwoven with his

dominant purpose.

What we would submit is that once one finds

that that was interwoven with his dominant purpose,

then he should not be deprived of the right to have

his cause tried. As I have said, at page 37,

line 18, he finds:

Dr Spautz had other purposes in instituting

the various criminal proceedings being

considered, most of which were also improper,

not being consistent with the purposes for

which criminal proceedings exist, such as to

vindicate his reputation (as civil proceedings

he regarded as too expensive), and to collect

material for his research into corrupt
practices in Australian institutions. The

purpose of vindication of reputation was

interwoven with the purpose of exerting

pressure upon the University for
reinstatement. Vindication of reputation is
not a proper predominant purpose for a person

to have in instituting or maintaining

proceedings for criminal defamation.

A proposition with which we would not agree. It is

undoubtedly true that criminal libel may be used

when there is a public element to the libel. I do

not mean by that in relation to publication, but

Williams(2) 56 7/11/91

when the libel relates to a public figure. It is

only a New South Wales decision of - - -

McHUGH J: Four members of this Court are from New South

Wales.

MR CASSIDY:  I am sorry, Your Honour, I meant a single judge

decision.

MASON CJ:  I am not as sensitive as Justice McHugh,

Mr Cassidy. There is no need to apologize.

MR CASSIDY:  Your Honour, I meant it was only a single judge

decision, I am sorry, of Mr Justice Davidson. It

is only reported in Weekly Notes; volume 45 Weekly

Notes, page 78. The libel was about a member of

the Chinese National Party - nothing seems to

change, Your Honour - and at page 79, very near the

foot of the right-hand column, Mr Justice Davidson

said - this is dealing with criminal informations

for libel:

The order was only made, generally at the suit

of a person in a judicial or other public

position when attacked in relation to the

conduct of such position or so that the

carrying out of his duties might be affected.

That was in addition to libels which endangered the

peace. At the foot of the left-hand column on

page 80, he said of the applicant in the

proceedings before him:

Also, the applicant holds to some extent a

public position in that he is a member of the

executive of the Chinese National Party, and

the charges appear to affect him in the

conduct of that position.

Now, the gravamen of the charges of libel made

by Dr Spautz against the various defendants in his
proceedings was that he was a lecturer in a

university incorporated by statute and that their

defamatory statements had influenced the committees

of that university which had tried him, and had

resulted in his dismissal from that public

position. He was at least in as much of a public

position as the Chinese gentleman in the case to

which I have just referred.

McHUGH J:  I notice, though, in Mr Justice Davidson's

judgment he said that "applications should be

discouraged which appear to be directed merely

towards extracting an apology or vindicating

private character".

Williams(2)	57	7/11/91
MR CASSIDY:	Yes, Your Honour.	I am sorry for having

referred to judges of New South Wales, Your Honour.

There is an early New South Wales case of Reg v

Cecil, 4 SCR 323, in which Chief Justice Stephen,

reading part of the facts on page 323: in a very short judgment - I should start by

The affidavit of the prosecutor (who was a

person engaged in mercantile pursuits) in

support of the rule, after verifying the

letter -

it was a criminal libel prosecution -

denied that there had been anything in his

language or conduct which could have misled

the defendant in applying to him such

offensive language; and stated that an apology

had been demanded, but not made. He also

deposed that he believed that the libel was

calculated and intended to excite to a breach

of the peace.

At the foot of that page, in the judgment of

Chief Justice Stephen:

I am of opinion that the present rule must be

discharged, but on the condition only that the

defendant shall pay the costs of the motion.

He ought to pay the costs, because the offence

is clearly established, and the libel is

couched in the most gross and offensive terms.

The defendant also was asked to withdraw it, and ought to have done so; but he has refused

to do so, and has sought to justify the

language appearing in this paper by counter

charges, which we cannot regard as justifying

or excusing such a letter.

The importance is that in that, a case of criminal

libel, there seemed to be nothing regarded as wrong

in asking for and continuing the prosecution after

the refusal of an apology.

McHUGH J: This is a strange case, of course. There does

not seem to be any form of publication.	It is a
letter.

MR CASSIDY:  Well, there does not have to be in criminal

libel. Some of those old cases show that it is

sufficient for a criminal libel because of the

breach of the peace element for the publication to

be only to the prosecutor.

McHUGH J: Yes, but that is because they are so different.

The old law is so different from the law under the

New South Wales Act.

Williams(2) 58 7/11/91

MR CASSIDY:  I should have said "in those days" that was the

position.

Our next proposition, and it is not vastly different from the last one, I hope, is that

provided the immediate purpose is to pursue the

criminal proceedings to a conclusion - and I do not

necessarily say a conclusion resulting in

conviction because they may finish with a finding
of the offence proved without proceeding to a

conviction - the fact that that is used as a step

to obtain something else is not sufficient to

warrant them being classed as an abuse of process.

If the immediate purpose is a valid one, the fact

that that purpose may be turned to another use and

made further use of does not destroy it.

I have dealt, I think, with most of the cases

which we would rely on on that point, including

Dowling v Colonial Mutual Life earlier. We would

also rely on Hanrahan v Ainsworth, 22 NSWLR 73.

That was a most complex libel action in which

Mr Hanrahan was a police officer; Mr Ainsworth the

owner of a poker machine manufacturing company, who

was looking to invest in the United States.	A
report made by Hanrahan to the licensing authorities in the United States had somewhat

interfered with Mr Ainsworth's hopes of success

there. The case was before Mr Justice Kirby,

Mr Justice Mahoney and Mr Justice Clarke, and at

page 116 Mr Justice Clarke said this - he was

speaking of Ex parte Griffin, which was one of the

bankruptcy cases. I am reading on page 116B:

This case was relied upon by Griffith CJ

in a dissenting judgment in Dowling v Colonial

Mutual Life Assurance Society Ltd. Here the

respondent society obtained the assignment of

a debt enabling it to obtain a sequestration

order against D for the purpose of thereafter examining Din order to discover the identity

of the persons who had instigated D to publish

defamatory matter about it. His Honour

deduced from Griffin a principle that where a

petitioning creditor takes proceedings "solely

as a means to some collateral and illegitimate end, and not as a bona fide means of obtaining payment of a debt", the court may decline to

make an order of sequestration.

Isaacs J reconciled Griffin with other

authorities upon the basis that the
petitioning creditor's purpose in that case

was not to sequestrate the debtor but to

oppress him by threatening to make him

bankrupt. His Honour then referred to

Williams(2) 59 7/11/91

Grainger in seeking to distinguish between use

and abuse saying -

and that is the passage that my friend earlier

referred to. Then lower down at the foot of the

page at letter G:

His Honour concluded that there had

merely been a "use" of process. The

'

petitioning creditor filed the petition for

the purpose of obtaining a sequestration

order. That was a proper purpose. The fact

that once an order had been made the creditor

would seek to examine the debtor about an

irrelevant matter was alone insufficient to

give rise to an abuse.

At the top of page 118:

This is a clear expression of the dual elements which together constitute an

abuse - an intention to use the process for an

improper purpose and the putting into effect

of that intention. Proof only of intention to

issue proceedings to gain an end not within

the lawful scope of the process is not enough.

That intention must be accompanied by actions

showing that the intention is being carried

out.

I am sorry, that was relevant to the earlier point than the one that Your Honour Mr Justice Mason

asked me about, but the point is that that, as it

analyses Dowling, recognizes that the important

thing is what is the immediate intention.

Next, might I refer to King v Henderson,

(1898) AC 720. It is, again, a bankruptcy case and

the particular passage is in the advice of the

Privy Council at pages 731, 732 and 733:

Their Lordships do not dispute the

soundness of the proposition that a plaintiff

or petitioner who institutes and insists in a

process before the Bankruptcy or any other

Court, in circumstances which make it an abuse

of the remedy sought or a fraud upon the

Court, cannot be said to have acted in that proceeding either with reasonable or probable cause. But, in using that language, it becomes necessary to consider what will, in

the proper legal sense of the words, be

sufficient to constitute what is generally

known as an abuse of process or as fraud upon

the Court. In the opinion of their Lordships,

mere motive, however reprehensible, will not

be sufficient for that purpose; it must be

Williams(2) 60 7/11/91

shewn that, in the circumstances in which the

interposition of the Court is sought, the

remedy would be unsuitable, and would enable

the person obtaining it fraudulently to defeat

the rights of others, whether legal or

equitable.

I think I can then skip to the next page, about point 7 on the next page:

Motive cannot in itself constitute fraud,

although it may incite the person who

entertains it to adopt proceedings which, if

successful, would necessarily lead to a
fraudulent result; and it is not the motive,

but the course of procedure which leads to

that result, which the law regards as

constituting fraud. In In re Davies the Court

of Appeal refused to make an adjudication in

bankruptcy, where it was clearly shewn that

the proceedings had been used and was meant to

be used for the illegitimate and fraudulent
purpose of extorting money from the debtor.

And, again, in Ex parte Griffin, the same

Court, although there was a good petitioning

creditor's debt, and an act of bankruptcy had

been committed, refused to make an

adjudication ....• "! think I never knew a case

so transparent as to the fraud with which the

whole thing was conceived, and the oppression which it was intended to exercise. It would,

I think, be a shocking thing for any court of

justice in a civilised country to be made the

instrument of proceedings like these."

We would therefore suggest that it is not

enough that one of the purposes, albeit the

predominant purpose, be improper. We would suggest

that it is not enough that the prosecutor proposes

to make a use of the result of his proceedings for

a purpose beyond the immediate function of those

proceedings, and in reality what we submit in this	case is that this is not a case in which it can be
seen, or can be seen with the clarity which is required summarily to bring proceedings to an end
that the proceedings were brought by this
prosecutor not with the intention of prosecuting a criminal information for libel against the various defendants and thereby, he hoped, obtaining a
finding from the magistrate sufficient upon which the Crown would then pursue them as indictable
matters. That there is nothing in the finding of Mr Justice Smart, and certainly nothing in the
findings of the Court of Appeal so to show that his
purpose was improper in that sense, and we would conclude by referring to the very short judgment of
Mr Justice Meagher, who put it with his usual

Williarns(2) 61 7/11/91

succinctness.	He agreed with reluctance but, he
said:

the only alternative is to embrace a theory

that the Court may deprive a litigant of his

right to press a cause of action, however

legitimate, if he initiates it with unworthy

or malevolent motives - a theory which is both

socially dangerous and repugnant to legal

principle.

MASON CJ: Well, that strikes me as a rather strange

judgment, to say the least of it. Why is it that

the Court have imperfect powers to deal with

litigants whose sole occupation seems to be the

manufacture of law suits?

MR CASSIDY: Well, the Court does have powers.

MASON CJ: Well, that is what I would have thought. I would

be astonished if the Court did not have powers to

deal with such a situation.

MR CASSIDY:	But this, Your Honour, we would submit, is not the appropriate way in which to do it. The statute
provides a power, provides two powers - - -

MASON CJ: But His Honour seems to embrace the view that the

Court is without power to deal with the manufacture
of law suits.

MR CASSIDY: Well, presumably what His Honour was saying was

that it was without powers in proceedings of this

nature, because it must be borne in mind - - -

MASON CJ:	By the way, why is the theory socially dangerous?
MR CASSIDY:	Because it enables proceedings to be hit on the

head without a proper examination of whether they

have a chance of success or not, an examination which the appellant in this case has studiously avoided being made. It is socially dangerous

because people are being deprived of their right to

have a final hearing without - on a basis other

than that they have no reasonable course of action.

MASON CJ:  I would not have thought that there was any

social danger is staying proceedings where the

person who initiates the proceedings is doing so

for the purpose of blackmail.

MR CASSIDY:  Not at all, Your Honour, but there is no such

finding here.

MASON CJ: But I am not talking about the finding here, I am

talking about the general view that His Honour

happens to be expressing in this judgment.

Williams(2) 62 7/11/91

MR CASSIDY: Well, Your Honour, I would take it that

His Honour would not be saying that you could not

stop the proceedings where they were being used for

blackmail either, and certainly, as I understand

it, Mr Justice Priestley would have been prepared

to stop blackmail-type proceedings. Those,

Your Honour, are the submission that we would put.

MASON CJ: Just one thing, before you sit down, Mr Cassidy?

Was Mr Justice Smart asked to make a finding that

the proceedings were continued as well as commenced

for a predominantly improper purpose?

MR CASSIDY:  I was not there of course, Your Honour. I did

not understand him to have been so asked.

MASON CJ: Because there does seem to be some material in

Mr Justice Smart's judgment that would have

justified a finding that the proceedings were

continued as well as commenced for such a purpose.

The written publications after the commencement of the criminal proceedings pursuing the desire to

achieve an out-of-court settlement - it would seem

to be in exactly the same tenor as the

correspondence and publications preceding the

institution of the criminal proceedings.

MR CASSIDY:	Yes.
MASON CJ:	It seemed to be in exactly the same tenor as the

correspondence and publications preceding the

institution of the criminal proceedings.

MR CASSIDY:  Yes, Your Honour. Mr Justice Smart did, of

course, find that there was a shift at the end of

1983.

MASON CJ: But that was after the conunencement of the

criminal proceedings, well after.

MR CASSIDY:  Yes. I cannot help Your Honour as to whether

he was asked to make that finding. I was not part

of the trial.

MASON CJ: Justice Brennan has pointed out to me that on

page 38 of the appeal book there is a finding that

the predominant purpose of Dr Spautz in instituting

and maintaining the criminal proceedings was for an

improper purpose.

MR CASSIDY:  Yes.

MASON CJ: Elsewhere it seems to have been confined to

commencing the proceedings.

MR CASSIDY: Yes, Your Honour.

Williams(2) 63 7/11/91

MASON CJ:  But now, if that be so, if that be the finding

that he made, why are we concerned with a

proposition that it is necessary to find, in

addition to improper purpose in commencing the

proceedings, an improper use of the proceedings, an

improper act?

MR CASSIDY:  On the basis, Your Honour, that the continuance

constitutes an act?

MASON CJ: Yes.

MR CASSIDY:	I understood Mr Justice Priestley to be using the word "act" in a different sense from that and
to be talking about more than just the original act
of laying the information and the act of pursuing
it thereafter, but that he was referring to acts
done in the course of the proceedings which would
prejudice a fair trial and prejudice it impossibly.
I did not take it that the dichotomy he was referring to was between the commencement of the proceedings and the going on with them thereafter. And I would not put that that was what he was
referring to.

MASON CJ: But certainly the demands for an out-of-court

settlement were made after the commencement of the

proceedings, were they not?

MR CASSIDY:  Yes.

MASON CJ: And on the finding made by Mr Justice Smart, the

demand for an out-of-court settlement would have

been an improper use of the proceedings.

MR CASSIDY:	Yes.
MASON CJ:	In other words, an implementation of them for the

improper purpose for which they were commenced.

MR CASSIDY:  But what we would put would be that the mere making of a demand without any effect and without

any effect upon the fairness of the proceedings was

an act without result, and therefore of no

importance.

DEANE J:	It would be contempt of court, would it not?
MR CASSIDY:	Yes, it could well be, and that is one of the

sorts of remedies that Mr Justice Priestley

referred to as being available in the appropriate

case. Indeed, a contempt of court might have

justified a non-permanent stay until the contempt

was purged.

MASON CJ: Thank you, Mr Cassidy. Yes, Mr Sheller?

Williams(2) 64 7/11/91

MR SHELLER:  Your Honours, I regret that I am unable to

answer the question that Your Honour the

Chief Justice put to my learned friend. There is

no doubt that in the way that we have been putting

our submissions, we have not drawn, as perhaps we

should, a distinction between instituting and

maintaining.

In terms of what was meant by

Mr Justice Priestly by "act" and particularly his

analysis of cases such as Grainger v Hill, we would

understand that what His Honour had in mind was
effectively taking a writ of ca re to a ship and

by, in effect, waving it in the air extorting from

the ship owner his register; in other words, using

the piece of paper for that sort of purpose.

As we understand it, it was that sort of act

that His Honour had in mind. The approach that we

have taken in our submissions is that if one is

looking at this as a public interest question, to

confine the abuse to something like that is both

unnecessary and no more nor less against the public

interest than instituting proceedings for a purpose

that is ulterior, and by that very institution

engaging in what is a purpose or an object which is

against the proper purpose of criminal proceedings.

One thing that we wish to emphasize, and it is

referred to in the Goldsmith case, is that the
courts talk also of threatened abuse; that is to
say, the threat of commencing or instituting such

proceedings for such an ulterior purpose.

But, Your Honours, there is no doubt that

Mr Justice Smart said what he did on page 38, but

that is not the part of the judgment that is picked

up and quoted by Mr Justice Priestley. He quotes

the earlier finding which we referred to in our

written submission.

DEANE J:  Mr Sheller, have you seen anything in the cases

which helps identify what you mean by ulterior

purpose? I mean, for example, I presume you would

not suggest that it was an ulterior purpose to

institute bankruptcy proceedings in order to get

your debt paid when that is what the whole point of

the proceedings normally is, even though the

proceedings, as such, do not lead to an order for

the payment of the debt; or a borderline case,

perhaps, if you introduce proceedings for criminal

assault. Would it be contrary to your submission

if you said, "Provided you give an undertaking to stop assaulting me, I won't go ahead"? One would

have thought that was within the scope of the

proceedings.

Williams(2) 65 7/11/91

MR SHELLER:  Your Honour, the closest that we have come in

an analysis of that is the passage that I read from

Lord Justice Bridge's judgment in Goldsmith v

Sperrings - - -

DEANE J: Yes, I noticed that.

MR SHELLER:  - - - where there is acknowledged to be this

grey area, and, I suppose, in this sort of thing

there always will be a grey area. In terms of

ulterior, the expression that is used from time to

time, and to get it precisely, Your Honours, may I

just look up, I think it is Varawa again, in

Mr Justice Isaacs judgment at, I think it is

page 91, Your Honours. He talks, at page 91, of:

some purpose other than the attainment of the

claim in the action.

And then, by reference to the:

stalking-horse to coerce the defendant in some

way entirely outside the ambit of the legal

claim upon which the Court is asked to

adjudicate.

It is in that sort of area that Lord Justice Bridge

speaks about matters that may arise out of

negotiation and that sort of thing, Your Honour.

DEANE J: Which means, in this case, if vindication of

reputation is a legitimate purpose for criminal

libel, you would presumably say a demand for an

apology as a condition of discontinuing might be

within - - -

MR SHELLER:	I think fairly, yes.
DEANE J:	- - - but that extortion or a demand for money may

not be.

MR SHELLER:  Yes.

McHUGH J: But does it not all suggest that a finding of

predominant purpose is neither satisfactory nor

sufficient and that the test should be the purpose

or sole purpose, if you like? Let me give you an

illustration. Supposing an alderman has two

purposes in prosecuting a political rival: one, he

wants to get him convicted for failing to disclose

a pecuniary interest, because that will result in

the disqualification from office of the person who

has offended. Now, why should the law stop that

prosecution merely because the alderman has, as one

of his purposes, perhaps even his predominant

purpose, the removal of his political rival from

office?

Williams(2) 66 7/11/91

MR SHELLER:  Your Honour, the answer that we would seek to

run against that, principally, is the sort of

public interest answer that it is not the object of

a criminal law to succeed in convicting all those

that offend. There is a situation, and that we

would respectfully submit would be one, where the

court and its system is held in disrepute if indeed

that prosecutor avows what his purpose is, and he

says, "My purpose is to achieve something that is

quite outside the object and scope.".

McHUGH J: But he is saying two purposes. He is saying, "I

want this man convicted of this; he should not have

done it; and what is more, I want him removed from

office".

MR SHELLER:  "One of my purposes", he says publicly, "is to get rid of this man."

MCHUGH J: Yes.

MR SHELLER: Well, Your Honour, we would respectfully submit

that as a matter of public interest that brings the

law into disrepute. And, Your Honour, no doubt if

one talks about "predominant", we would submit even

more so.

DEANE J:  Why would you not say that is his motive for

getting a conviction?

MR SHELLER: Well, Your Honour, that, of course, is - if

indeed it is truly what moves him to do what he is

doing and his object is to get a conviction and not

simply to achieve a removal of office, then it is of no significance; but if, indeed, he says, "My

object, what I am out to achieve, is to remove this

man from office or to prevent him standing in the

next election", and the court takes no notice of

that and says, "Well, nothing can be done about

it", that is just, we would have thought, the

public interest that the court would be concerned

to protect itself against, for the reasons that are And we submit that that is really the key to

put forward by Mr Justice Richards.

this. It is, in effect, a matter of judicial

policy; the court's policy to this sort of

behaviour and we would respectfully submit it is

scarcely answered by saying that it is not his sole

purpose, that he has some slight or some other

purpose that he can advance, such as is advanced in

this case.

MASON CJ: But is it necessary for you to take issue with

that example?

Williams(2) 67 7/11/91

MR SHELLER: Well, Your Honour, perhaps I did because I

thought that I was giving too much away,

Your Honour, but I mean -

MASON CJ:  I have not noticed that is a fault in your advocacy, Mr Sheller.

MR SHELLER: But, Your Honour, if indeed one can categorize

that as motive on the one hand, and object on the

other, then I need not take exception to it, but if

it is said that a case like that suggests that it

is important that the offender be brought to

conviction and that therefore the ulterior object	should not be significant, then I would resist it,
Your Honours.

MASON CJ: But that is a case, of course, where there is an

intention to pursue the proceedings to

conviction - - -

MR SHELLER:	Yes.
MASON CJ:	- - - and then, in effect, take advantage of the

end result for a particular purpose. In a sense it

is not unlike Dowling's case.

MR SHELLER: Well, Your Honours, I wanted to refer again -

my learned friend referred to what

Mr Justice Powers had said in Dowling's case, but I

wanted to emphasize the example that was given, but

one page before, by Mr Justice Isaacs, in that

case, when he said that if those particular

proceedings had been used or threatened, then there

may well have been an abuse of process if that

threat had been for some ulterior object, and we

would respectfully submit that that example is a

very helpful and important one.

Your Honours, I wanted to emphasize the aspect

of threatening. May I give Your Honours, in terms of the criminal and civil contrast, a reference to

the material referred to in Spautz v Williams,

(1983) 2 NSWLR, the passage at the bottom of

page 539, in His Honour Mr Justice Hunt's judgment

which runs over to 540, wherein His Honour analyses

what he calls the:

vast difference between the functions of the

criminal law and that of the law of torts.

And in that regard, Your Honours, we would submit

that that carries over to and is important for

present purposes when one is talking about criminal

defamation, that it is not correct to say that to

vindicate reputation is a justifiable object of a

criminal prosecution for defamation.

Williams(2) 68 7/11/91

Indeed, Your Honours, one obvious reason of

course is the availability of the civil process,
but the other reason being that the criminal law is

there to serve a totally different object to that

of vindicating the particular citizen. Some

mention was made this morning before lunch about

the power of the court to intervene which, in terms
of close and reasoned analysis from the bar table,
requires some deal of preparation and

consideration.

I had not thought that this point was one that

would be run but, Your Honours, we would

respectfully submit that it is dealt with by

analogy in what is said in John Fairfax v McRae in this Court in 93 CLR 351. There is an analysis by

four members of the Court which goes through such

cases as Parke and Davis and comes to the
conclusion expressed in the middle of 365 that:

For the above reasons we are of opinion that

the Supreme Court of New South Wales has power

to deal summarily with contempts of inferior

courts of New South Wales, and for this reason

that court had jurisdiction to entertain the

application made to it, and to make the order

under appeal.

It was by analogy with that reasoning that the two decisions of this Court to which my learned friend

made reference, namely Herron v McGregor, the
judgment of Your Honour Justice McHugh, (1986)
6 NSWLR 246, what Your Honour said between 250 and

252 has been applied. We would respectfully submit

that nothing has been advanced by my learned friend

to suggest that that approach is a wrong approach.

Your Honours, those are the only submissions

that I would wish to put in reply.

MASON CJ:  Mr Sheller, I should ask Mr Cassidy a question

about this notice of contention which he has not

mentioned at all during the course of his address.

Depending on what he says, I may have to give you

the opportunity of saying something. What about

this notice of contention, Mr Cassidy?

BRENNAN J:  You do not have to say anything.

MASON CJ: Before you answer, I should make it clear that I

am not inviting you to address us at any length on

it.

MR CASSIDY:  Your Honour, I hoped I had incorporated - I

will start again. As I understand a notice of

contention, it is intended to support the court

Williams(2) 69 7/11/91

below on an alternative ground from that upon which

you won on.

MASON CJ:  On grounds not dealt with by the court below.

MR CASSIDY:  Yes. Your Honour, I did not intend to put any

arguments to the Court other than those which we

have put, some of which have perhaps adopted some

points that were not dealt with in the court.	I do
not know whether it was obvious from the typing that the notice of contention was not of my authorship.

MASON CJ:  Yes. Thank you, Mr Cassidy. I take it you do

not wish to say anything, Mr Shelley.

MR SHELLER: Nothing further, thank you, Your Honour.

MASON CJ: The Court will consider its decision in this

matter.

AT 3.46 PM THE MATTER WAS ADJOURNED SINE DIE

Williams(2) 70 7/11/91